Associated Grocers

806 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Associated Grocers and Transport and Local Deliv- ery Drivers, Warehousemen and Helpers, Local Union No. 104, an affiliate of International Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America, AFL-CIO. Cases 28-CA-4911, 28-CA-5091, and 28-CA- 5153 June 15, 1989 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND DEVANEY On December 21, 1984, Administrative Law Judge David G. Heilbrun issued the attached sup- plemental decision. Thereafter, the Respondent, the General Counsel, and the Charging Party filed ex- ceptions and supporting briefs and all parties filed answering briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings," and ' The Respondent and the Charging Party have excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for reversing the findings. In adopting the judge's finding that the General Counsel did not estab- lish that Larry Broyles' July 1983 letter to the Respondent recommenced his right to reinstatement and backpay, we note that the letter appeared to be one of general inquiry rather than a firm committment to return to the Phoenix, Arizona area to work for the Respondent at any specified time. In adopting the judge's finding that the fourth quarter of 1978 should be excluded from Jack Allen's backpay entitlement , we note Allen's testi- mony that he did not begin his search for interim employment in the Phoenix area until early 1979, after his return from Dayton, Ohio, and that during his 5 weeks in Dayton visiting his family , he only sought work at two bakeries. This testimony indicates that Allen did not serious- ly seek interim employment in this quarter. Thomas Cantele's backpay entitlement subsequent to his quitting inter- im employment at Shamrock Foods in November 1981 is governed by the principles set out in Knickerbocker Plastic Co., 132 NLRB 1209, 1215 (1961). Contrary to the judge, we would not deny Bruce Anderson all back- pay from February 26, 1979, onward but instead would compute what he was earning at the Respondent, when he was fired on that date, as con- structive interim earnings during the balance of the backpay period and then apply the offset formula set out in Knickerbocker Plastic, supra, 132 NLRB at 1215. 8 In adopting the judge 's rejection of the Respondent 's claim that set- tlements had been reached concerning the backpay due discnminatees Ashline, Chase, Cook, Dial, and Jacobi and that those settlements should preclude the award of backpay in any greater amount than was previous- ly agreed on, we do not rely on any implication that no settlement can ever be regarded as valid in the absence of approval by the Regional Di- rector. See American Pacific Concrete Pipe Co., 290 NLRB 623 (1988). We agree, however, that the payments to which the Respondent refers were not true settlements and cannot bar an award based on evidence support- ing the amended backpay specification. These discriminatees accepted the payments in question based on the representation that they were full pay- conclusions2 only to the extent consistent with this Supplemental Decision and Order.3 1. In his decision the judge concluded that back- pay claimants Jon Martin, James Wood, and Thomas Pickart should not receive the backpay sought for them by the General Counsel. Specifi- cally, the judge found that both Martin and Wood had received valid offers of reinstatement that thereafter tolled their entitlement to backpay, and that Pickart was only a casual employee who, during the strike, had obtained substantially equiva- lent employment elsewhere. The judge further found that no backpay was owed claimant Arnold Babb for the period after December 19, 1978, and that claimant Larry Holland should be excluded from receiving backpay until the third calendar quarter of 1983. The General Counsel has excepted to these findings and, for the reasons set forth below, we find merit in these exceptions. The Respondent's employees engaged in an eco- nomic strike between April 12 and October 4, 1978.4 By mailgram dated October 4, the Union in- formed the Respondent that the strike would end the following morning and that the strikers were making an unconditional offer to return to the same or to substantially equivalent positions to those that they had held prior to the commencement of the strike. Thereafter, a program of reinstating former strikers was begun. The Board, in the underlying unfair labor practice proceeding,5 found that the Respondent had discriminatorily denied reinstate- ment to returning strikers who are the backpay claimants in this proceeding. I. JON MARTIN Claimant Jon Martin was employed by the Re- spondent as an order selector in the dry grocery warehouse. Prior to the strike he was working the night shift, which began at 9 p.m., with Fridays and Saturdays off. After the strike ended, Martin was contacted by the Respondent's vice president ment of what was owed or, in the case of Dial, that he was being paid all except for an amount that would be resolved by the litigation of a par- ticular issue It was subsequently discovered that data on which the Re- gional Office's preliminary calculations had been made were in error, and because the case was still being litigated, the backpay specification was amended accordingly At no time did the discriminatees agree to settle their claims for less than the Regional Director determined was owing a Interest on backpay will be computed in the manner prescribed in New Horizonsfor the Retarded, 283 NLRB 1173 (1987). In light of our modifications to the judge's backpay determinations, as well as his election not to provide final backpay determinations, we shall remand this proceeding to the judge for the purpose of providing such final calculations. We note, however, the judge's reference to the parties' expressed inclination to recalculate the backpay amounts on the resolu- tion of the issues in this proceeding . If mutually agreed on , this may pre- clude the need for the judge to issue a detailed backpay schedule. 4 All dates are in 1978 unless otherwise indicated. 5 Associated Grocers, 253 NLRB 31 (1980), enfd . 672 F 2d 892 (D.C. Cir. 1981), cert denied 459 U .S. 825 (1982). 295 NLRB No. 81 ASSOCIATED GROCERS of operations, William Cooksey, and offered a posi- tion in the dry grocery warehouse beginning at 3 p.m., with Tuesdays and Wednesdays off. Cooksey further advised Martin that unless this position was accepted, Martin would be terminated from the Respondent's employ. Martin nevertheless rejected the offer because it was not to his former job. The judge found that minor differences in shift time and days off, while distasteful to this employ- ee, are not of such significance as to render the offer invalid. He accordingly tolled Martin's back- pay as of January 23, 1979, the date the Respond- ent's offer of reinstatement was made . We disagree. The Board has long held that an employer is ob- ligated to accord economic strikers preferential status and to reinstate them on application, or if re- placed, when their previous or substantially equiva- lent positions become available , in the absence of legitimate and substantial business justifications. NLRB v. Fleetwood Trailer Co., 389 U.S. 375 (1967); Laidlaw Corp., 171 NLRB 1366 (1986), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1970). The Board has further held that an offer of employment for a different shift is not "substantially equivalent." Thus, an employee's re- fusal to accept such an offer does not alter his or her status as a former economic striker desiring re- instatement or operate to remove him from the preferential hiring list. See, e.g., Harvey Engineering Corp., 270 NLRB 1290, 1292 (1984); U.S Mineral Products Co., 276 NLRB 140, 142 (1985). Here, the 9 p.m. shift was still in operation when the Re- spondent offered Martin work on the afternoon shift with less favorable days off. 6 No reason was advanced by the Respondent for not offering Martin a job on his former shift other than that it viewed the afternoon shift to be equivalent to the later shift. We do not find that reason sufficient to justify the Respondent's failure to offer Martin his former job on his prestrike shift. Accordingly, we find that the Respondent's January 23, 1979 offer to Martin of a different shift with different days off was not to his former job and was not of substan- tially equivalent employment and that he continues to retain his status as a former economic striker en- titled to a valid offer of reinstatement. II. JAMES WOOD James Wood had been employed in the Respond- ent's repack shipping department . On March 8, 1979, Cooksey sent Wood a certified letter that stated that work was available in the grocery ship- ping area and that Wood had until 10 a.m. 8 Before the strike , Martin had worked his way up to a job that gave him weekends off. 807 Monday, March 12, 1979, to reply. Like Jon Mar- tin's conversation with Cooksey, the letter conclud- ed that unless there was a timely response, Wood would be terminated from the Respondent's employ. According to Cooksey's credited testimony, Wood failed to contact him until after the March 12 deadline had passed at which time Wood ad- vised him that he wanted to return to his former position in general merchandise. Cooksey further testified that despite the fact that he encouraged Wood to accept the offer and to exercise his trans- fer seniority at a later time, Wood nevertheless turned the offer down. The judge found that the Respondent's offer of a position in the grocery shipping department to a former repack department employee was valid. He further observed that there is no evidence to sug- gest that Wood complained of insufficient time within which to consider the offer. The judge ac- cordingly concluded that the General Counsel's claim on behalf of Wood, to the extent of backpay beyond that admittedly due, is without merit. Contrary to the judge, we find, for reasons simi- lar to those set forth with regard to Martin, that the Respondent's offer to Wood of a position in grocery shipping is not substantially equivalent to his former job, as required by the Board's Order. Moreover, as noted by the General Counsel, the judge's findings on the question of whether Wood timely responded to an invalid offer of reinstate- ment are completely irrelevant.? We therefore con- clude that the Respondent's backpay obligation to Wood extends from October 9, 1978, until May 26, 1980, the date on which Wood explicitly expressed a binding intent not to return to the Respondent's employ. III. LARRY HOLLAND Claimant Larry Holland was employed as a truck serviceman at the time of the strike . Holland has never received an offer of reinstatement and we agree with the judge's finding that he remains entitled to one. A question arises, however, con- cerning the amount of backpay to which Holland is entitled. The judge found that as a result of serious health problems, Holland was unavailable to work from a period beginning sometime during the strike until the third quarter of 1983.8 Consequently, the I The Board made clear in Consolidated Freigktways, 290 NLRB 771 (1988), that "It is thus incumbent on the Respondent to extend to the injured employee a facially valid offer of reinstatement before the burden shifts to the injured employee to accept or reject the offer." 8 Because of Holland's health problems, the backpay specification ex- cludes backpay for him for the following periods. the period from the fourth quarter of 1978 into the second quarter of 1979, and the period Continued 808 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD judge confirmed the General Counsel 's claim for backpay for Holland only for the portion that ac- crued from that quarter onward . The General Counsel maintains that this finding is at odds with the evidence. We find that Holland 's backpay period begins later than the General Counsel con- tends but earlier than the judge found. The evidence shows that from the time of the strike in April 1978 until January 1982, Holland was only able to work sporadically because of a physical disability that required several operations. Thus, although Holland worked for a gas station in Washington State and thereafter for Hank's Towing Service and Precision Sheet Metal in Ari- zona, he was forced to leave each of these jobs after only several months because he was physical- ly unable to maintain them . During this period, he also took a job as a night watchman based on his doctor's advice that he could not do truck and automobile servicing, and he also enrolled in a CETA training course to be trained for lighter- duty work . After Holland's employment with Pre- cision Sheet Metal, he was unable to work for the next year and a half. On this basis, we agree with the judge that the General Counsel's claim that Holland be accorded backpay for the last three quarters of 1979 and the first three quarters of 1980 be denied. In late 1981 , however, Holland received a complete medical release and subsequently began working for Bill's Auto Body . Thus, we find that Holland's entitlement to backpay should commence with the first quarter of 1982, when his health problems subsided, he reentered the labor market, and he was again available to work full time. IV. THOMAS PICKART Thomas Pickart was a college student who had been employed full time by the Respondent before resigning that position in late 1977 to pursue his education. In February 1978 Pickart was rehired by the Respondent and assigned to work as an order runner in the produce department. Accord- ing to Pickart's unrefuted testimony , he regularly worked three scheduled 8-hour shifts per week, on Wednesday, Saturday, and one other day that he could not recall. In late March 1978 Pickart sus- tained an industrial injury and was unable to work for about a month, by which time the strike had commenced . Pickart testified that as a consequence, he crossed the picket line for the sole purpose of submitting his medical release, and left. Although he periodically checked with the Union and from the fourth quarter of 1980 through part of the fourth quarter of 1981 stopped to talk to Cooksey in 1983, he has had no other contact with the Respondent. According to the testimony of the Respondent's assistant personnel manager, Thomas Martinez, Pickart was hired in 1978 as a casual employee. Martinez further testified, however, that once an individual was hired and assigned to a department, it was the department supervisor who thereafter scheduled the employee's hours or called him to work when his services were needed . Martinez re- called that Cliff Poulson was Pickart's supervisor in the produce department and would have been responsible for scheduling Pickart's hours. Never- theless, although Poulson was called to testify, he did not contradict Pickart's testimony concerning his work schedule. Contrary to Martinez, Pickart denied that he was told, when rehired in 1978, that the nature of his position was casual. The judge found that Pickart was a casual em- ployee, basically engaged for miscellaneous, call-in work on an as-needed basis . In arriving at this de- termination, the judge concluded that the disjoint- ed set of shifts Pickart was working in the several weeks prior to his industrial injury were insuffi- cient to convert his status from a casual to a regu- lar part-time employee. Alternatively, the judge concluded that the position Pickart acquired at A. J. Bayless, thereafter, was of substantial or greater equivalence to his former position with the Respondent. The judge accordingly found that Pickart is not entitled to reinstatement or backpay. We disagree. The unrefuted evidence demonstrates Pickart was a regular part-time employee and eligible for reinstatement on that basis . Thus, his testimony shows that he worked a regular schedule each week and, contrary to the judge's finding, was not called on a casual, as-needed basis. See Etna Equip- ment & Supply Co., 236 NLRB 1578 (1978); Berger Transfer & Storage, 253 NLRB 5, 10-11 (1980), enfd. 678 F.2d 679 (7th Cir. 1982). We accordingly conclude that Pickart is not barred from an offer of reinstatement and backpay. We also disagree with the judge's alternative finding that Pickart's position as a part-time clerk at A. J. Bayless, a retail grocery store, was sub- stantially equivalent to his position as an order runner in the Respondent's produce department. It is well established that the burden of showing that a striker has obtained regular and substantially equivalent employment rests with the employer. Lone Star Industries, 279 NLRB 550, 554 (1986), enfd. mem. in pertinent part 813 F.2d 472 (D.C. Cir. 1987); Salinas Valley Ford Sales, 279 NLRB 679 (1986). Moreover, the question of what consti- tutes "regular and substantially equivalent employ- ASSOCIATED GROCERS ment" is determined not by a "mechanistic applica- tion of the literal language of the statute," but rather through the objective appraisal of several factors, both tangible and intangible, including the desire and intent of the employee concerned. Little Rock Airmotive, 182 NLRB 666 (1970), enfd. in rel- evant part 455 F.2d 163 (8th Cir. 1972). In the instant case, the Respondent's assertion that Pickart had obtained a position of substantial or greater significance is primarily predicated on the facts that at the time of the hearing Pickart had been employed by Bayless on a part-time basis for approximately 4 years and had been sent by Bay- less to a management training program sponsored by the food industry at the University of Southern California. Nevertheless, a review of the evidence further establishes that Pickart's job responsibilities as a retail clerk at Bayless are very different from his responsibilities as an order selector in the Re- spondent's grocery warehouse. This is evidenced by testimony that Pickart's job at Bayless encom- passed stocking and receiving groceries at the retail level, whereas his job with the Respondent encom- passed stocking and pulling wholesale groceries using a forklift or other warehouse machinery. Ad- ditionally, as the General Counsel points out, Pick- art's hourly wage at Bayless has been throughout the backpay period, several dollars less than his wage at the Respondent. Finally, we note that the judge gave no weight to the fact that the Respond- ent at no time sought to ascertain the intentions of Pickart concerning recall with the Respondent. In any event, it is clear that Pickart maintained a con- tinuing interest in returning to his job as demon- strated by his contact with the Union and his per- sonal contact with Cooksey in 1983. Under these circumstances, we conclude that Pickart, after ac- cepting employment with A. J. Bayless, did not abandon his employment with the Respondent. We accordingly find that Pickart remains entitled to an offer of reinstatement and backpay. V. ARNOLD BABB At the time of the strike, claimant Arnold Babb was employed as a resident driver in Parker, Ari- zona.9 According to Babb's credited testimony, on November 19, 1979, Cooksey telephoned him to offer him a job as a city pool driver. Babb declined the offer and has had no further contact with the Respondent. The judge found that the Respondent eliminated Babb's former position in December 1978, 2 months after Babb's backpay period had begun to 9 When the strike began, Babb was recuperating from an operation he had undergone in February He was thereafter released to return to work in May. 809 run. The judge further found that although the sub- stantially equivalent position of city pool driver was available to Babb at that time, it was not until November 19, 1979, that the Respondent offered the position to Babb. Despite these findings, how- ever, the judge inexplicably tolled Babb's backpay period on December 19, 1978, 11 months before the Respondent's offer of reinstatement was made. It therefore appears that the judge may have mis- takenly confused these dates and as a result errone- ously denied Babb backpay to which he was enti- tled.1 ° Babb's backpay period is accordingly tolled as of November 19, 1979, the date on which he ex- pressly declined the Respondent's offer. 2. The Respondent has excepted to the judge's treatment of the so-called "slotting" issue, contend- ing that certain discriminatees are being given more backpay than was due because of the way in which reinstatement dates were calculated. Because the Respondent's contentions rest on speculations, not certainties, about what might have occurred had it timely reinstated certain employees prior to the end of the strike, we reject the Respondent's exception. The problem arises because of differences be- tween two groups of discriminatees with respect to dates for calculating the commencement of back- pay, i.e., the class of discriminatees known as the "polygraph discriminatees"-employees who sought to return before the end of the strike but were deterred by the Respondent's unlawful impo- sition of a polygraph test-and the discriminatees covered by the Union's October 4, 1978 uncondi- tional offer to return. Backpay commencement dates for the polygraph discriminatees (which are not indispute here) were the dates on which they were denied reinstatement because of failure to accede to the polygraph requirement. Regarding the other class of discriminatees, because it was agreed that the order of reinstatement would be de- termined by seniority, the most senior strikers were entitled to fill positions of temporary replacements as of October 9. Because they were not then rein- stated, their backpay ran from that date. Less senior unreinstated strikers' backpay commence- ment dates matched the dates of subsequent open- ings that occurred. The matchup of particular strik- ers to' particular openings (whether on October 9 or thereafter) was referred to as "slotting." Obvi- 10 In the event the judge's tolling backpay for Babb on December 19, 1978, is based on the elimination of Babb 's prestrike position rather than on his confusing relevant dates, the judge has erred because Babb was entitled to an offer of reinstatement to a substantially equivalent position if his former job had been abolished No such offer was forthcoming until November 19, 1979, and hence Babb's backpay period continued to run to the date he declined that offer. 810 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ously, the greater the number of strikers "slotted" for reinstatement on October 9, the earlier the rein- statement dates into which less senior strikers would be "slotted." The Respondent argues that the number of avail- able openings on October 9 (i.e., the number of po- sitions then held by temporary replacements) should be treated as reduced by the number of polygraph discriminatees whose backpay was run- ning as of that date. It reasons that if the latter had been reinstated when they applied, they would have occupied jobs held by temporary replace- ments on October 9 and those jobs would then not have been available to the later returning strikers. Accordingly, it argues that certain less senior strik- ers assigned October 9 backpay dates should have been relegated to the dates of subsequent openings, with consequent "bumping," down the line of still less senior strikers to even later reinstatement dates. The Respondent's argument has surface appeal, but we agree with the General Counsel that, under the established principle that a wrongdoer should bear the consequences of uncertainty that his own conduct has created , ' 11 we should not penalize indi- viduals in either class of discriminatees on the basis of speculations about what might have occurred had the Respondent acted lawfully with respect to the polygraph discriminatees. Thus, for the purpose of compensating the polygraph discriminatees we assume, in the absence of any way of definitively determining the issue, that they would have re- turned to work on the dates they were unlawfully precluded from returning and that they would have continued in those positions through the end of the strike. But it is possible one or more of them might have left before the end of the strike, in which case they could not have been holding a position that would otherwise be held by a temporary replace- ment. Furthermore, it should be noted that the Re- spondent apparently had openings at the time it made the invalid offers to the polygraph discrimin- atees, and the Respondent has not established that it subsequently filled those openings with tempo- rary replacements. Hence, even if the polygraph discriminatees had been reinstated, the same number of temporary replacements might have been working at the end of the strike. Thus, for the purpose of compensating the strikers covered by the unconditional offer to return, we decline to speculate that, had the Respondent behaved lawful- ly, there would have been fewer available positions at the strike's end than were actually then held by temporary replacements. Accordingly, we affirm the backpay dates determined by the judge. 11 See, e.g., Rainbow Coaches, 280 NLRB 166, 169 (1986); NLRB V. Miami Coca-Cola Bottling Co, 360 F.2d 569, 572-573 (5th Cir. 1966). 3. The General Counsel has excepted to the judge's denying backpay for William Manley during the first quarter of 1979, and for Leon Mul- lins during the first and second quarters of 1979. We find merit in the General Counsel's exceptions. Manley, who was a warehouseman for the Re- spondent 9 years prior to the strike , made numer- ous applications for interim work prior to his rein- statement. He applied at several grocery ware- houses (Fry's, A. M. Lewis, El Rancho, and S. E. Rykoff) as well as other area employers. Accord- ing to his credited testimony, Manley also checked newspaper classified ads regularly , pursued leads, and periodically canvassed the commercial sector of Phoenix for interim work. There is no question but that Manley made reasonable efforts to obtain interim work. Mullins, a 15-year employee with the Respondent, similarly testified without contradic- tion that he made numerous applications for inter- im employment . Mullins registered at the union hiring hall and applied at several companies, in- cluding freight companies because of his truckdriv- ing experience. Mullins also pursued newspaper ads and personal leads. Notwithstanding their numerous efforts to find interim work, the judge denied backpay to Manley and Mullins during portions of 1979 because they did not seek interim employment at some (or, in the case of Mullins, any) Phoenix-area grocery warehouses where fellow strikers had found work. The judge found that by this conduct, Manley and Mullins willfully incurred the loss of interim earn- ings. It is well settled that discriminatees are not held to the highest of diligence in seeking interim em- ployment. They need only make reasonable efforts to mitigate backpay liability. See, e.g., NLRB v. Ar- duini Mfg. Corp., 394 F.2d 420, 423 (1st Cir. 1968). Moreover, "[a]s a general proposition, entitlement to back pay does not turn on a showing that the discharged employee sought precisely the same type of interim employment as that from which he was discharged." Avon Convalescent Center, 219 NLRB 1210 (1975), enf. denied 549 F.2d 1080 (6th Cir. 1977). See also Fugazy Continental Corp., 276 NLRB 1334, 1341 (1985); Blue Hills Cemetery, 240 NLRB 735, 736 (1979). Here, Manley and Mullins admittedly applied at numerous companies for interim work. The Re- spondent, who has the burden of establishing that these discriminatees willfully incurred the loss of interim earnings, did not establish that Manley and Mullins applied for positions that did not involve warehouse work or that were not substantially equivalent to their jobs with the Respondent. Nei- ther did the Respondent prove that these discrimin- ASSOCIATED GROCERS atees clearly would have obtained substantially equivalent employment had they applied to other area grocery warehouses. See generally Champa Linen Service Co., 222 NLRB 940, 942 (1976). Al- though the judge found that many fellow strikers obtained work with the Respondent's competitors, in view of the approximately 400 employees that struck the Respondent, there is no reasonable cer- tainty that Manley and Mullins would have similar- ly succeeded. Knickerbocker Plastic Co., 132 NLRB 1209 (1961); NHE/Freeway, Inc., 218 NLRB 259 (1975), enfd. 545 F.2d 592 (7th Cir. 1976); and Neely's Car Clinic, 255 NLRB 1420, 1421 fn. 6 (1981), do not require a contrary result. We read these cases as re- quiring only that an individual with extensive expe- rience in a specialized field, be it as a captain of waiters, nurse's aide, mechanic, or musician, etc., must at least seek interim work within this special- ty. Manley and Mullins, as warehousemen, would appear to have generalized skills that could readily transfer to any number of working environments. Moreover, as discussed supra, the Respondent does not contend that these employees neither sought in- terim warehouse work nor work utilizing the skills they developed with the Respondent. Accordingly, on this record, we would award Manley backpay for the first quarter of 1979 and Mullins for the first two quarters of that year.12 12 Chairman Stephens agrees that William Manley is entitled to back- pay for the first quarter of 1979 , but would find that Mullins forfeited his right to backpay during the first two quarters of the year . Mullins admit- ted that he did not look for any jobs at grocery warehouses . He gave varying reasons for his doing so. At one point in explaining why he did not seek work at any of the Respondent's competitors (other grocery warehouses), he replied, "I got one," meaning his job with the Respond- ent. He went on to testify that he did not want to go to work at another grocery warehouse "and do the same thing again, go out on strike and have to start all over again," even though he conceded that none of the other warehouses were then on strike because "[t]he other ones we[re] settled." But the real reason he did not apply for work at grocery ware- houses appears to have been , as he acknowledged in his testimony, that he simply did not want to work at any grocery warehouses other than the Respondent Thus, it is clear that Mullins made a conscious decision not to look for work at grocery warehouses and that that decision was not based on any legitimate substantive or personal ground Unlike his colleagues, the Chairman does not view the issue as whether Mullins would have secured employment at grocery warehouses , but as whether, under the circumstances establishing that employment at such warehouses was at material times available , Mullins should have at least tried to get jobs in the industry in which he had worked and had experience . Mullins did not even try Accordingly, Chairman Stephens finds that Mullins ' failure constituted a willful withdrawal from the industry job market and that this failure is not overcome by the fact that he did some job seeking outside his indus- try. The Chairman does not quarrel with the general proposition that en- titlement to backpay does not turn on discnminatees seeking precisely the same kind of employment with interim employers that they had when discharged. That proposition, however, does not mean that backpay claimants are free to ignore potential employment opportunities in their own industry. Therefore, he agrees with the judge that Mullins should be denied backpay for the particular quarters in question . NHE/Freeway, 218 NLRB 259, 260 (1975), enfd 545 F.2d 592 (7th Cir . 1976) (Hunt) (willful loss of earnings for the failure of a nurse's aide to look for work as a nurse's aide although aware such work existed ). Heinrich Motors, 166 811 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Associated Grocers, Phoenix, Arizona, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Include claimants Jon Martin, James Wood, and Thomas Pickart and their backpay amounts. 2. Restore tolled backpay amounts to claimants Arnold Babb and Larry Holland. IT IS FURTHER ORDERED that this proceeding is remanded to the administrative law judge for the purpose of calculating the specific amount of back- pay owing to each individual claimant who has been found in this backpay proceeding to be enti- tled to backpay. NLRB 783, 791-792 (1976), enfd. (re Cira) 403 F.2d 145 (2d Cir 1968) (Knaack) (failure to seek work in type of establishment in which claimant was employed constitutes a willful loss of earnings). Jane V. Goldman and Kenneth D. Meadows, Esqs., for the General Counsel. Jerome L. Froimson, Ltd., of Phoenix, Arizona, for the Respondent. Michael J. Keenan (Ward & Keenan, Ltd.), of Phoenix, Arizona, for the Charging Party. SUPPLEMENTAL DECISION DAVID G. HEILBRUN, Administrative Law Judge. On October 4, 1982, the United State Supreme Court denied Respondent's petition for certiorari to the Court of Ap- peals for the District of Columbia Circuit which had, on December 1, 1981, entered judgment enforcing the Board's Decision and Order in this matter as reported at 253 NLRB 31 (1980). Such adjudication affirmatively re- quires that Respondent reinstate numerous nonperman- ently replaced strikers to their former jobs or, if such no longer exist, to substantially equivalent positions, and make them whole, with interest, along with other em- ployees who suffered loss of pay as a result of discrimi- natory polygraph tests. Controversy having arisen over the amount of back- pay due under terms of the Board's Order, and over other issues contained in an amended backpay specifica- tion and as separately raised by the Charging Party, the matter was heard in supplementary proceedings at Phoe- nix, Arizona, on various days during February and March 1984. Upon the entire record , ' my observation of witnesses, and consideration of posthearing briefs, I make the numerous determinations that follow. I. SALIENT BACKGROUND Respondent is a major grocery wholesaler of the Southwest, whose operations can be generalized as the 1 The General Counsel's unopposed motion to correct the record dated August 3, 1984, is noted and granted. 812 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD receipt of food and grocery products in bulk for re-sale, shipment, and delivery to retailers and other users . It uti- lized an expectable work force of warehouse and produce packaging employees, drivers, mechanics, and miscellaneous supporting personnel. Teamsters Local 104, the Charging Party herein, has been collective-bar- gaining representative for many years, however contract negotiations in 1978 led to commencement of a strike on April 12 of that year. Operations were nevertheless con- tinued with hundreds of replacement employees hired during the 6 months that the strike was in effect. This economic strike ended October 4, 1978, by blan- ket notification from Teamsters Local 104 to Respondent that all striking members unconditionally offered to return to work. A program of recalling former strikers was then generated, the details of which shall be set out below. Contract negotiations between Respondent and the Union had been suspended in late 1978 and remained dormant for several years. The hearing on consolidated complaints of employer unfair labor practices occurred during spring 1979, and the Board's ultimate Decision and Order modifying the administrative law judge's De- cision and recommended Order issued in late 1980. Ap- peals followed this and it was not for another 2 years that compliance contacts began between personnel of NLRB Region 28 and Respondent's counsel. Negotia- tions had also resumed between the parties . This yielded their first collective-bargaining agreement since expira- tion of that having a 1975-1978 duration, the attempted renewal of which had precipitated this entire labor dis- pute of such extended scope in terms of subject matter and chronology . The new agreement, effective from De- cember 5, 1982, through February 29, 1984, recited rec- ognized seniority districts as utilized in past years, these being in the contractually stated order (1) produce ware- house, (2) grocery warehouse, (3) drivers, (4) truckshop, (5) meat production, (6) sanitation, (7) warehouse mainte- nance, (8) fork repair, (9) package meat, and (10) bakery (Baird Division) drivers. When the strike began in April 1978, unrepresented employees of the maintenance de- partment, numbering approximately a dozen including those doing refrigeration work, had been the object of then-inconclusive efforts by Teamsters Local 104 to in- clude them in the bargaining unit. The numerous points in controversy include episodal matters, application of legal , logical, or conceptual prin- ciples, resolution of operational factors relative to the Board's ordered remedy, group and individual assess- ments in regard to reinstatement rights or the validity of backpay computations, and various fact situations that pertain to particular persons, all in a timeframe preceding commencement of the strike to instances in which claims exist for present fulfillment of reinstatement rights with continuing accumulation of backpay and interest. II. COMPLIANCE NEGOTIATIONS A. Generally After unsuccessful appeal to the United States Su- preme Court, the compliance phase of this case began. With the Board's Order having validated only 237 striker replacements as being of a permanent nature, practically all striking employees were legally entitled to immediate reinstatement following a 5-day grace period from appli- cation, or a deferred remedy based on their departmental seniority. Region 28 has been directed for more than 10 years by Milo V. Price. The regional organization does not in- clude a compliance officer per se, instead supervisory as- signment for natural follow-through determines the ordi- nary mode of fulfilling case compliance . The unprece- dentedly massive scope of this case necessitated use of all professional staff personnel in the process of handling several hundred potential claimants and refining perti- nent documentation for disclosure to Respondent. As the process escalated into 1983 Respondent came into posses- sion of voluminous material , and from this an early prac- tice emerged of liquidating certain backpay claims by in- formal dealings with staff of the Region and officials of the Union. By mid- 1983 a more formalized approach to compliance had been reached, and certain payments which are now matters of dispute were made under aus- pices of Board agents. B. Claimed Accord and Satisfaction Respondent maintains a motion to strike various ex- cesses in monetary claims now made as amendments to the original backpay specification , in regard to James Ashline, Ray Chase, Ronnie Cook, Henry Dial, and Nor- bert Jacobi. Respondent argues that principles of accord and satisfaction, or alternatively those of estoppel, shield it from further liability to any of the named individuals. Each of these cases had involved determinations within the pool of Regional staff work, overseen as was best possible to do under the circumstances , with the most critical resolutions being those relating to the validity and timing of a reinstatement offer as such might fulfill that aspect of compliance and establish a cutoff point to which backpay might be calculated. Regional Director Price, testifying with the General Counsel's written consent, described that by mid-1983 the shakeout had left the incumbent of his assistant's po- sition, in functional cooperation with a team supervisor of the case attorney, as persons with theoretical general shared responsibility for securing compliance. As it hap- pened Kenneth Meadows was both trial and or senior counsel on the unfair labor practice case and a team su- pervisor. Jane Goldman of the Region's staff became the person then identified by Regional Director Price as chief contact representative , and in fact she sent subse- quent letters to Respondent's counsel which are claimed to be of controlling relevance on this issue. An earlier letter dated July 22, 1983, to Jerome L. Froimson, as counsel for Respondent, from Regional Di- rector Price dated July 22, 1983, alluded to a report that by then only 20 out of 300 discriminatees had received backpay, and that the intention was to issue a backpay specification no later than August 31 , 1983, covering all persons "whose claims have not been satisfied by [that] date." This letter had also set forth a general outline of compliance activity within the Region as to discriminatee interview, further investigation , obtaining Social Security reports and verifying actually earned amounts during the ASSOCIATED GROCERS backpay period, and conversion of this information into appropriate individual backpay amounts . This letter also stated: Based upon your representations and requests and in anticipation of quick agreement on backpay amounts for most of the discriminatees , this office provided you, beginning as early as April 13, 1983, with copies of the computations for the discrimina- tees, reflecting the amounts of backpay owed and how said amounts were computed , including full descriptions of interim employers . As of this date, you have been provided with computations for ap- proximately 90 percent of the discriminatees. Some of the backpay computations have been in your pos- session for more than three months . However, to date, the Region has been provided with no evi- dence of any payments being made, although I un- derstand that you are prepared to show that 20 dis- criminatees have been paid their backpay. Regional Director Price wrote Attorney Froimson again on July 25, 1983 , the complete text of his letter being: The Region has been orally informed that 20 of the discriminatees in the above matter have been given checks for the amounts of backpay and inter- est agreed upon by the Respondent and Regional Office representatives on July 1, 1983, to be due them. However, despite our prior understandings, the Region has received no signed receipts , copies of checks or other evidence that any discriminatees have in fact been paid the monies owed them, nor any evidence of the date of any such payment by the Respondent. Without such evidence, the Region cannot conclude that they have been paid. It should be noted that whether to allow direct distribution of backpay by the Respondent is within the discretion of the Regional Director and, if so, permitted only on terms and conditions prescribed by the Region. Therefore, in order to have an or- derly distribution of backpay by the Respondent, it must be conducted on the following basis: (1) Once an amount of backpay has been agreed upon between the Respondent and the Region, a specific date, not later than seven days from the date interest is tolled , will be set for distribution of the checks. (2) A signed receipt, on a form provided by the Regional Office, must be secured from each individ- ual receiving a check in person and must be for- warded to the Board office not later than the day following the distribution of the check. (3) All checks which cannot be delivered to the discriminatee in person by the Respondent must be delivered to the Regional Office for transmission to the backpay claimant on the payment date specified. (4) When an amount to be paid to a discriminatee and a date for payment has been agreed upon, the Regional Office will inform the affected discrimina- tee by letter of the amount to be paid and the date on which he will receive his check(s). 813 (5) In the event an agreed-upon payment is not made to the discriminatee or delivered to the Re- gional Office on the date specified, the interest on the backpay amount will continue to accumulate to the date of payment. In the event the guidelines set forth above are not followed, the Regional Office will reconsider its permission to allow the Respondent to distribute the backpay checks. On July 26, 1983, Field Attorney Goldman wrote At- torney Froimson alluding to their meeting the day before and to understandings reached with respect to 36 discri- minatees as to date, manner, and verification of backpay checks to them. She wrote again on August 24, 1983, in much the same vein, however, this letter included the following paragraph: The amounts to be paid to 10 additional discri- minatees listed on Appendix B constitute payment of the undisputed portions of their backpay and in- terest. It is understood that this office takes the po- sition that additional backpay is owed to these dis- criminatees for the various reasons we discussed on August 19, 1983, and that additional backpay, with appropriate interest, will be sought for each of these individuals. All receipts secured from the discrimin- atees listed on Appendix B will recite that the checks are part, rather than full payment of back- pay. Comparable letters were written by Field Attorney Goldman to Attorney Froimson on September 6 and No- vember 14, 1983 . Taking the attachments to these four letters from Field Attorney Goldman as a whole, the cases of Ashline, Chase, Cook, Dial, and Jacobi were each listed, in all cases except Dial signifying that full backpay would be tendered. Respondent did so to these four persons, with all but Cook (he disregarding the ac- companying receipt) signing an acknowledgment of pay- ment. The reference to Dial, and the accompanying re- ceipt tendered him, signified that only partial backpay was being made and that an amount remained in dispute as part of the class issue relating to a correct starting date for backpay computations. In late 1983 a comprehensive file review was under- taken within the Region for the purpose of assuring ac- curacy and consistency in the theory and application of backpay pleadings. In the course of this it was discov- ered that the five individuals named in Respondent's motion to strike had each been the subject of error, and following this steps were taken to advise Respondent of the changed outlook and to make recomputations of backpay. The details and chronology of this discovery, rectification, and rationale are fully set forth in a memo- randum dated February 17, 1984, from Field Attorney Goldman to Regional Director Price. A related docu- ment is Regional Director Price's memorandum to file dated February 6, 1984, which in turn harmonizes with statements of record by General Counsel and its brief on this issue. Simply stated it is explained that the task of making an error-free compliance analysis during 1983 814 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD was not equal to the magnitude involved, but that revela- tions as are now the basis for revised claims were timely presented to Respondent and coupled with a fair oppor- tunity to refute. Respondent contends that finality should necessarily attach to its mid-to-late 1983 handling of these claims, both because the related documentation sufficiently so termed the payments and because Regional Office per- sonnel should be held to the consequence of their appar- ent authority . Respondent analogizes its actions to pri- vate accord and satisfaction of claims, adding that both the affected individuals and the Union consented, in Cook's case at least by retention of money proceeds, and that it would not necessarily have acquiesced in these cases had there been knowledge they might later have been enlarged. Regional Director Price testified to the definite extent that under well-settled agency policies , practice, and reg- ulation, he is the sole individual with authority to ap- prove any settlement of formal aspects in a case and that with regard to the individuals in dispute he had not ex- tended such approval . He likened the situation of mid- 1983 dealings between Respondent and his staff as a pre- liminary winnowing process, under which only the issues identified as stubbornly remaining in dispute would be necessary to prepare for actual hearing. The General Counsel's position rejects the characterization of these payments as a "settlement" of claims, arguing instead that only upon an informed, authoritative basis could a claimant be viewed as having full and satisfactory pay- ment as a reflection of what the Board, with court sanc- tion, has ordered be done. The General Counsel adds that the actual sequence of backpay hearings left ample time for Respondent to deal with what was presented, and that in any event it advanced no evidence of preju- dice on the subject. The Board and courts have long affirmed that where error, delay, or arguable prejudice has arisen in the course of compliance undertakings this does not warrant the disadvantaging of innocent employees nor excusing a party having liability for unfair labor practices from ulti- mately fulfilling an ordered remedy . Here the timeframe was not excessive in terms of the extraordinarily large number of individuals being processed , nor did the claim- ants have any role beyond passive cooperation in what was sought of them. I recognize that Respondent's coun- sel is understandably dismayed over the abrupt with- drawal from what appeared to have been concluded as a matter of documented waiver and ordinary reliance in professional dealings . This is not, however, a sufficient basis to stray from controlling principles whereby public policy in the realm of labor-management relations is ful- filled with the vindication reflected in monetary amounts flowing to wronged employees. NLRB v. J. H. Rutter- Rex Mfg. Co., 396 U.S. 258 (1969). A recent illustration of the principle is found in Neely's Car Clinic, 255 NLRB 1420 (1981), in which decisional language referred to re- liance on the advice of a Regional compliance officer being "misplaced," as determinations by that functionary were "reviewable by the Regional Director," and in turn the Board itself. On this basis I now determine there is. insufficient merit to Respondent's contention in this regard, and deny the motion to strike. III. ISSUES PRESENTED BY CONSOLIDATED BACKPAY SPECIFICATION (AS AMENDED) A. Claimed Strike Misconduct 1. Mark Martinez The first of several alleged strike misconduct cases re- lates to Mark Martinez, and as to this individual the proofs are solely found in testimony of John Gulledge and associated evidentiary exhibits plus connective testi- mony from former Security Supervisor Gary Abbott as to a photo identification procedure carried out under Re- spondent's auspices. Gulledge was a strike replacement employee who worked briefly during the spring of 1978 and again later that summer. He was a day-shift warehouse worker fre- quently finishing in late afternoon after having used a bi- cycle for transportation to Respondent's facility. This had been the general circumstances on June 6, 1978, as Gulledge left work through the 27th Avenue gate to proceed north intending to make an eastbound crossing of the 1-17 Freeway on Jefferson Street. While bicycling that route he approached access roadway 23d Avenue and was at that point on the north side of Jefferson. Gul- ledge testified that he had sensed a car overtaking him and at or about that moment experiencing a thrown rock hit his front bicycle tire. As the car proceeded to decel- erate for a stop sign while on the south side of Jefferson, Gulledge observed the driver and another person facing him while sitting halfway outside on the car 's passenger windowsill. The episode had occurred during a traffic break with no other automobiles around, and Gulledge looked directly at the car's driver then took its license number. During these moments Gulledge also recalled that profanity and the word "scab" was yelled at him from the passing automobile. Subsequently through Re- spondent's security department Gulledge examined sever- al photographs and identified Martinez , who was in fact the registered owner of the car in question, as being its driver when the rock was thrown. Aside from its uncontradicted nature, Gulledge's testi- mony was intrinsically highly credible with respect to candor, precision in detail, and earnestness of delivery. Cross-examination established a response that in a 1978 contempt proceeding before the Maricopa County Supe- rior Court, Gulledge had testified that the car's passen- ger had done all the shouting . However, the actual tran- script of that proceeding does not show this to have been his final particularizing description on the point, or that he had as limited his recollection during a prehear- ing deposition concerning the contempt matter . Thus in this regard and generally with respect to Gulledge's ear- lier testimony, I find no significant inconsistencies and use his rendition as the controlling basis of fact. From this it is plainly apparent that Gulledge had been stalked by the car which Martinez was driving, and amidst hos- tile utterances a rock was hurled at Gulledge by a pas- senger situated only as to be in the process of commit- ting an uncommon act. This situation leads to the evident ASSOCIATED GROCERS characterization of Martinez as a participant in the epi- sode, and he was so found in the contempt proceeding to have been an "aider and abettor" in violation of an exist- ing temporary restraining order. In Clear Pine Mouldings, 268 NLRB 1044 (1984), the Board reviewed past doctrine regarding strike miscon- duct of a nature that results in loss of statutory protec- tion, including, insofar as main opinion writers were con- cerned, relevant legislative history . The context and holding of Clear Pine concerned verbalisms, and a more restrictive test was adopted . Henceforth menacing utter- ances could carry the consequence of disqualification for such reinstatement rights as would otherwise exist, when the person to whom such remarks were directed would reasonably tend to be coerced or intimidated as reasoned by the court in NLRB v. W. C. McQuaide, Inc., 552 F.2d 519 (3d Cir. 1977). Beyond this rule of the case, the Board set forth an explicit view that strike activity did not sanction conduct other than "peaceful picketing and persuasion." Cf. PBA Inc., 270 NLRB 999 (1984). The General Counsel argues that the episode is at worst trivial, did not result in actual injury, and must be balanced against the employer's own conduct . While it is true that minor, isolated acts of malevolence by strikers have escaped sanction, here the prospects for serious injury were present and the perpetrators displayed reck- less disregard for the various ways in which a tragic consequence could have resulted . As to any balancing argument, the Employer here was essentially accused of institutional unfair labor practices with respect to a vig- orous collective-bargaining representative of its employ- ees, and its total conduct was not viewed to be unlawful in any regard until review of the underlying case was completed by the Board in 1980. I thus conclude that by present applicable standards the facts of this episode allow no privilege to attach when a rock is perilously flung toward a bicyclist proceeding at the edge of a public thoroughfare, and for this reason determine that Martinez is disqualified from reinstatement and thus enti- tled to no backpay. 2. Wallace Strickland In the case of Strickland Respondent relies on the tes- timony of David Vaughn. He is a 10-year employee who initially joined the strike and then returned to his former job on May 19, 1978. Vaughn is presently and for the past 4-1/2 years has been a working foreman. He attend- ed a union meeting held in the Plumbers hall a few weeks after the strike started at which several hundred members of Teamsters Local 104 were given a report on negotiations, following which they overwhelmingly voted to reject the employer's offer as then constituted. Vaughn had traveled to the meeting with coworker Virgil Lewis, and initially spoke randomly with several persons while still outside the building. He then entered to sit with Lewis during the approximate 2-hour period that the meeting consumed . Vaughn testified that during a break in proceedings Strickland and Gerald Christman approached his row of seats and stood in front of him. He testified that Strickland stated he had a bullet for Vaughn's head, and that Christman added Vaughn would never live through a choice of going back to 815 work. Vaughn forced a smile while answering back that it would make his wife a rich woman. He recalled that Strickland continued to nag the subject for about 5 min- utes, and then moved to the end of the aisle and stared back. After this initial confrontation about 15 other per- sons said that he stood a chance of getting hurt if he should return to work. Following the meeting, and as Vaughn was again outside in the parking lot , he recalled several persons approached to ask if he was returning to work and that Bruce Anderson civilly debated the pros- pect with him. In fact Vaughn returned the following day, traveling in the van of other persons also working at the time and positioning himself so as not to be seen from outside the vehicle . He continued this mode of travel to work for about 2 months. Strickland flatly denied making any remarks to Vaughn of the type attributed to him, but elaborated how he had an unspecified exchange of words with Vaughn both outside the building before the meeting commenced and inside while those in attendance were settling down for the start. Christman corroborated all of Strickland's denials; however, his testimony did not fore- close that there could have been occasions during all the hubbub of the meeting when he would not have been present for an exchange of words between Vaughn and Strickland. Earnest Trujillo testified to being at this meeting, and recalled how Vaughn had approached a group of members afterwards to offer comment that he felt a good contract had been proposed . Trujillo de- scribed how those present laughed off his viewpoint, and called him dumb for thinking this way. It is axiomatic that an employer has the burden of proof in establishing engagement in disqualifying strike misconduct. See NLRB v. Burnup & Sims, 379 U.S. 21 (1964). I am not persuaded by Respondent's case as to Strickland for the principal reason that demeanor factors cause me to discredit Vaughn's testimony. Recognizing that he could have courageously sought to earn a living as he saw fit during the enormously destabilized period of the strike's early weeks, I am not impressed with ac- curacy of his recollection in identifying Strickland as the source of such an ominous threat as was described. Addi- tionally, the credible denials of Strickland and Christ- man, the latter being particularly telling insofar as Vaughn had placed Christman as directly involved in the claimed essentially life-threatening utterances , are inde- pendent reasons to reject Respondent's contention with respect to Strickland. It is of further significance that ac- cording to Strickland's credited version Vaughn uncon- cernedly later crossed the picket line, and by fall of that year was on practically amicable terms with Trujillo who would reasonably have been associated with a yet- lurking peril. Respondent's countering arguments to the effect that Vaughn simply resigned himself to living with danger while ultimately relaxing his precautions are noted, along with what was established concerning Tru- jillo's angry repudiation of a reinstatement job. Overall the requisite burden of proof has not been met, and I de- termine that Strickland is not disqualified from reinstate- ment and thus entitled to this as an individual remedy plus running backpay. 816 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3. Robert Harry As to this individual Respondent raises two incidents which are assertedly the justifiable basis for its denial of reinstatement. The first of these occurred in course of the strike at a time fixed only as around July 1978. During a late afternoon as Garage Supervisor Frank Wood was exiting Respondent's 27th Avenue gate he had occasion to stop, scrutinize the driveway in front of his vehicle, pick up nails, and then proceed on. In the course of this a line of pickets was at the gate, and other individuals were across 27th Avenue . Former security employee Robert McCullough testified, after orienting himself with a sketch of the physical layout, that from his position in a guard shack 100 feet away he had seen Harry walk to the front of Wood 's stopped truck and bend down. This would have taken Harry a few feet inside the premises from the public sidewalk . McCul- lough recalled that after Harry 's movement, Wood then went to the front of the truck and picked up a pointed star nail in seeming anger. Keith Strader is now with the security company serv- ing Respondent and was formerly in its security depart- ment as of 1978. He recalled observing an afternoon inci- dent from about 70 feet away, in which Wood had paused in his exit to pick up nails from the driveway fol- lowing which Harry ran across 27th Avenue to kneel down and apparently place another nail ahead of Wood's truck tire . Strader testified that Wood picked it up as Harry returned across the street, and handed it to securi- ty guard Clayton Thoreson. The writeup of the incident was actually done by Thoreson, who at the time was a contract guard and is now a supervisor of uniformed guards for Respondent. Thoreson testified that while on gate duty in a midafternoon he witnessed Wood leaving the property and making his customary stop to pick up nails. Thoreson added that Wood returned such nails to the pickets and reentered his truck to complete the exit. Before he could do so, Harry and others ran across 27th Avenue and, midst much confusion and milling around, Harry knelt down to place a nail directly under Wood's front tire. According to Thoreson, Wood dismounted again to pick up the nail as Thoreson himself called to the police. Harry testified to being an assistant picket captain during the strike . He asserted that pickets themselves cleared the 27th Avenue driveway of nails on a daily basis, and recalled the one occasion when Wood had to stop his truck in the process of exiting . Harry testified that on this unusual occasion Wood only told pickets that he was tired of harassment and would run over the next person who blocked his truck. Harry denied ever placing a nail ahead of Wood's vehicle, or of generally spreading them himself during any months of the strike. I cannot credit the testimony of Respondent's wit- nesses as to this episode for they each displayed an un- convincing demeanor, a vagueness of recall, and insuffi- cient internal harmony in their recollection of what should have been so vivid. The composite of their testi- mony does not comport with probabilities of a general scene such as was described, nor does Thoreson even corroborate that part of Strader's testimony as indicating that he immediately received the pointed object from Wood. Moreover Harry's general and specific denials of misconduct in this regard are credited on the basis of his persuasive demeanor. Most importantly Wood, in the course of twice being called as Respondent 's witness, gave no testimony on the incident, and this silence from the person best situated to know what happened control- lingly undercuts Respondent's case. On the second branch of what Respondent points to as Harry's claimed disqualification from reinstatement rights, the testimony of Robert Hamilton was presented. As a rank-and-file warehouseman he had initially joined the strike but returned to work in July 1978. He was soon appointed a grocery supervisor and progressed from that to his present position of grocery shipping su- perintendent. During the prestrike period of his employ- ment Harry had been a coworker with whom Hamilton carpooled. They were each residents in the Tempe-Mesa area of metropolitan Phoenix . Hamilton testified that about midnight of a day in August 1978 he was proceed- ing eastbound by automobile and at a stoplight on Mesa's Southern Avenue, when he sensed the headlights of an- other car coming up fast behind him. Believing that this signaled a possible follower he turned north, then east, north again, west on Broadway, and finally northbound again to the large intersection of Stapley Drive and Main Street where he pulled into the parking lot of a Dunkin Donut Shop. The same car had tracked all these maneu- vers, and when that driver got out it was Harry. Hamil- ton asked why the harassment was occurring , but could not recall any verbal response that might have been made. He then drove to Mesa's nearby Greyhound bus station and pulled into its parking lot where Harry had again followed. Both men got out of their cars where Hamilton attributes the statement to Harry that, "It's a shame about your kids." Hamilton testified that this greatly angered him and he drove off without answering back. Harry's version of any contacts with Hamilton that summer was that he had received telephone calls from him early in the strike, and had later seen him at a cab stand near the bus station. At that point in time of summer 1978 Hamilton was driving a cab, and Harry had gone there to apply for such work. A second occa- sion was at the donut shop when Hamilton came in as Harry was having coffee. By this time Hamilton had re- turned to work and the conversation between the two was tense . Harry testified to saying that Hamilton was setting a bad example, and should choose to support his family some way other than crossing a picket line. Harry denied threatening Hamilton's children at any time, or that he had said it was "a shame" about them. Cross-ex- amination established inconsistency in Harry's testimony during the underlying unfair labor practice hearing inso- far as spacing of telephone calls from Hamilton was con- cerned, whether Hamilton had importuned him to aban- don the strike, and that Harry harbored a definite anger toward Hamilton based on their respective actions as em- ployees of Respondent. I note these variances and that Harry seems strangely inaccurate on the separate random matter of estimating mileage distances in regard to ASSOCIATED GROCERS Mesa's downtown area bus station and the Stapley Drive and Main Street vicinity not far east of there. Given that there are infirmities in Harry's testimony I nevertheless reject Respondent's contention here because Hamilton's own testimony lacks credible or persuasive character. His demeanor and unassured recollection are largely the basis of this assessment . However, I find reli- ance in Harry's credibly voiced denial of the cryptic words attributed to him, and when this much is removed from the case no reason remains to view Respondent's burden of proof as having been met . On the overall issue as to Harry, I determine that he is not disqualified from reinstatement and thus entitled to this as an individual remedy plus running backpay. B. Computation of Vacation Pay A "make whole" remedy as applies to this proceeding embodies the award of vacation pay lost by the employ- er's discrimination. Sioux Falls Stock Yards, 236 NLRB 543 (1978); Central Freight Lines, 266 NLRB 182 (1983). At the threshold of this subject one looks to the labor contract provisions of the 1975- 1978 period, and their admitted carryover into the backpay period. Under these an employee of Respondent was entitled to vacation pay in terms of increasing ranges of service. The individuals also had an election to take pay in lieu of vacation upon timely notice to the employer. There are 15 discriminatees in dispute as to whom the parties have stipulated respective amounts would be due were the General Counsel's contention on the subject to prevail over Respondent's. In such cases these individ- uals secured interim employment at which vacation ben- efits were paid . From this the General Counsel argues that the denied employment at Respondent should be looked to in calculating a value for remedial vacation pay, and permit this to be affected only by the actual extent of working time spent at the interim employer. Contrarily Respondent would offset gross backpay only to the extent of interim employment, to which a quarter- ly portion of actual vacation accrual has been added. The parties stipulated to a document illustrative of their respective positions under a given hypothet, with 1/52 of gross backpay allocated as "vacation pay differ- ence" between an individual's entitlement as an employee of Respondent and what was available from an interim employer. Using a factor based on a presumed 3-week differential in vacation entitlement, General Counsel would reduce interim earnings by 3/52 of quarterly gross backpay and subtract this arithmetical product from in- terim earnings to yield a certain net backpay amount. Respondent's calculation would multiply the same 3/52 factor by the quarterly interim earnings, and reduce total interim earnings only by such lesser amount . The effect under Respondent's approach is to shelter interim earn- ings from the vacation pay reduction with the result of lowered net backpay. The General Counsel contends that established con- tractual practices of employment at Respondent would militate against assuming that discriminatees would not have elected some vacation pay; moreover, that given a choice prudence would dictate that relatively lower paying jobs would result in relatively less likelihood of 817 employees working in lieu of vacation time off . Respond- ent, citing Heinrich Motors, 166 NLRB 783 (1967), con- tends that the focus should be on interim employment and just as excessive overtime earnings need not disad- vantage a claimant the essence of any calculation here should be confined only to so much as is represented "during the time the employee would have worked for the Respondent," and thus undertake a set-off based on the interim employer's grant of vacation pay. I am satisfied that flaws in Respondent 's proposed ap- proach have been successfully detected, that the General Counsel's theory is better in keeping with a full remedial vision of how discriminatees should be reimbursed when employed in a highly structured setting as is present here, and that the resolution of vacation pay controversy in Heinrich is distinguishable from what Respondent argues here. The significance of having a vacation pay election in lieu of time off must be recognized, as was the case in Sioux Falls and Central Freight, supra. More- over, the Board recently held that probabilities in regard to vacation pay usage or scheduling should be reason- ably assumed when the fringe benefit is being factored into compliance. ITO Corp. of Rhode Island, 266 NLRB 503 (1983). Accordingly, I determine that the General Counsel's formula is more valid and appropriate to the case, which confirms the additional dollar amounts due as set forth, among other matters, in stipulated General Counsel's Exhibit 26. C. Critical Contacts Preceding October 1978 1. Striker status There are two unique situations that relate to prestrike dynamics of employment. The General Counsel briefed these as "special backpay eligibility issues" in terms of whether the concerned individuals were within "the class of striking employees." Respondent contends that one of the persons involved was merely a casual whose employee status did not transcend the strike, and that the other person lost any employee status by reason of having resigned prior to the strike. a. Thomas (Tom) Pickart Pickart testified that he had originally been hired as a casual employee and then became full time at Respond- ent's grocery warehouse in the years 1976 and 1977. Fol- lowing this he had quit to attend college at Arizona State University, but around February 1978 returned on a work schedule of Wednesday nights, Saturday morn- ings, and some established third night. His job on this oc- casion was as a produce department order runner. On both occasions of being hired by Respondent he was processed by Thomas Martinez of the personnel office. He was still attending college as of early 1978 when he was injured while at work in late March 1978 and re- ported this to a supervisor. About a month later he was medically released to return to duty, and provided this document to Martinez after crossing the picket line which was then in place. Pickart testified that Martinez remarked that he could be useful, but Pickart told him he was choosing not to return to work at the time giving 818 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the pending strike as the most particular reason . Pickart testified that he had no further contact from Respondent although he checked periodically for a year or so with the Union and later had a brief contact last year with William Cooksey, currently Respondent's vice president of distribution. Pickart had started work at the A. J. Bayless Company on September 8, 1978, on an approxi- mate 36-38-hour-per-week basis. He continued his studies and recently had a university management degree con- ferred after participating in a food industry scholarship program. Pickart denied that during his second span of employment with Respondent he was told the nature of the job was casual. Martinez testified that Pickart's second span of em- ployment was as a casual and that he did not recall a medical release being furnished by the individual. Marti- nez had no role in work scheduling once a person's hiring was processed, and he recalled that during the early 1978 period the official having this function was Produce Warehouse Supervisor Cliff Poulson. I am not persuaded from the meager evidence on this case that Pickart was more than a casual employee as Respondent has asserted. The General Counsel assumes the burden of proof in such an instance, and the fact that Pickart was for several weeks before the strike working a disjointed set of work shifts does not elevate his em- ployment to a station beyond what is ordinarily connot- ed by the term casual. To the extent that some regularity is shown, the relationship went beyond the even more tenuous notion of sporadic or intermittent, however the evidence is not sufficient to show that Pickart was basi- cally engaged for more than miscellaneous call-in work as needed. A second independent basis exists to reject his claim, for it is plain from the unique career followed by Pickart at Bayless that it became from the time first acquired in September 1978 a regular position of substantial or great- er equivalence to his former limited capacity with Re- spondent when viewed by the letter and intent of Sec- tion 2(3) of the Act. I am thus in agreement with Re- spondent's contention in this regard, and as an overall matter determine that Pickart has no entitlement to rein- statement nor to backpay in any amount. b. Larry Holland Holland testified to having worked at Respondent for over a year, and by spring of 1978 being a truck service- man on day shift. He recalled being spoken to just before the start of the strike by truck maintenance superintend- ent Frank Wood (the same individual previously termed "garage supervisor"). In the course of this Holland re- marked that if the imminent strike occurred he would take a job with his brother in the State of Washington. In fact Holland went on strike as did so many others, but in May 1978 he joined his brother in Chelan, Washing- ton, to work at a gas station. His family stayed in Phoe- nix where their home was owned. Holland experienced health problems causing his return to Phoenix in 1979. He has never received a reinstatement offer from Re- spondent. Wood testified that the conversation with Holland was immediately before the strike, and in it Holland had said that he was intending to terminate employment and move. On this basis Wood prepared an employee evalua- tion form for the personnel office, rating him as an aver- age employee. The form was executed on April 10, 1978, indicating that as the likely date of the conversation, and Wood did not claim that Holland ever saw the paper. Wood had at that point in time undertaken conversations with various employees of his department concerning the likely impact of an expected strike on them . In his own managerial planning for the strike contingency, he had not ascertained specifically whether any of his employees would or would not continue working. While I reserve total comment on Wood's credibility with respect to overall operational matters of his depart- ment, I am not persuaded that his recollection of the Holland conversation in April 1978 was at all accurate. Admittedly he did not recall it with exactness, but more importantly I find Holland a sufficiently credible witness when his demeanor, consistency of testimony , and detail of recollection are considered . I am satisfied that his case has been grossly misconstrued by Respondent, for there is a clear insufficiency of proof insofar as showing that Holland had expressed any intention to terminate from employment. When all facts are considered he emerges as an individual who took unique steps following the strike, but in no way so as to have left himself beyond the scope of the Board's general remedy. I determine that he was not a prestrike quit, and no reason exists to do other than confirm the General Counsel 's claim for an offer of reinstatement to Holland. However, the amount of running backpay due Holland is another matter. In contrast to his testimony regarding prestrike dynamics, the rendition of the years spanning late 1978 into 1983 raises serious questions of his work availability. While not fully susceptible to reconstruction from the evidence, it is clear that Holland was constantly plagued with health problems, compounded by oper- ations and a perception of his own that he was physically unfit for most ordinary employment (Tr. 377-388). While Holland underwent CETA training during this timespan and had brief employment as a machine operator , his sit- uation was not that of a person typically within the po- tential of ordinary labor market consideration. In a situa- tion of mixed health and personal considerations, the Board has looked to a "totality of the circumstances" in limiting backpay entitlement. Midwest Hanger Co., 221 NLRB 911, 925 (1975). With a record of sorts on the subject and the parties having tacitly briefed this point, the issue of what amount of backpay might be due Hol- land became a sufficiently fully litigated matter. Here I note that the General Counsel characterized Holland as one who "looked for interim work immediately," while Respondent's brief makes argument based on his "physi- cal problem," "health problems," and "intervening as- pects with regard to his health ." For the "combination of reasons" that pertain to Holland's chronic and peculiar circumstance of being constructively disabled from con- sistently gainful employment, I believe that the General Counsel has not made a realistic exclusion of calendar quarters falling within Holland's theoretical backpay period. Cf. Big Three Industrial Gas, 263 NLRB 1189, ASSOCIATED GROCERS 1201-1202 (1982). On this basis I further determine to ex- clude all calendar quarters through 1983-1982, and con- firm only the balance of 1983-1983 onward as not affect- ed by any failure to be within ordinary labor market availability. 2. Polygraph discrimination Respondent makes a comprehensive threshold argu- ment on this issue to the effect that the General Counsel is barred from seeking consideration of any individual not named in allegations of the underlying consolidated complaint. The large group of persons so named are con- tended to be an exclusive "all- encompassing" class, beyond which the General Counsel cannot now reach in asserting that other individuals are entitled as claimants under this heading. Further, Respondent argues that the factual findings of the administrative law judge in the un- derlying case were undisturbed by the Board, notwith- standing its contrary view as to legal conclusions, and that discussion of factual issues as presented at that time should be confirmed when an individual's conduct was no more than "equivocal." As to those actually named in the complaint originally, Respondent argues the principle of res judicata attaches, and that as in Ace Beverage Co., 233 NLRB 1269 (1977); Schorr Stern Food Corp., 248 NLRB 292 (1980); and Valley Cabinet & Mfg., 253 NLRB 99 (1980), the earlier litigation bars any surviving claim when they had not clearly been found victims of the polygraph test require- ment. Respondent urges that a second opportunity to tes- tify on the subject should not arise, particularly when the time to present all evidence was so clearly present before. I reject Respondent's legal defenses as summarized above because a tracing of the polygraph test issue gives no indication that all matters surrounding it, other than its effect in its alleged conversion of the strike's charac- ter, carried the potential of resolution in a future compli- ance proceeding. It was first a fragmented subject in the sense that facts relative to the strike period show that a first polygraphing phase occurred in the May 18-19, 1978 period, and then no striker sought reinstatement until early June at which point more thorough proce- dures for handling those leaving the strike had evolved. Secondly the treatment of contacts being made to man- agement around this time , and including as they did re- lated subjects such as intended strike abandonment, were analyzed only "cursorily." Additionally the administra- tive law judge's explication generalized matters by re- peated reference to "a number" and "many" employees, with great variations being present as the ponderous pro- gram unfolded. Most significantly, however, is the Board's own treatment of the subject in reversing on the fundamental issue of whether there had been justification to use the polygraphing technique. Plainly finding none to exist, the Board held that its discriminatory use "as a condition of reinstatement" was the essential unfair labor practice for which a make-whole remedy was ordered (emphasis added). For these reasons I proceed to individ- ual treatment of cases known from this record as the polygraph discriminatees. 819 a. Zeck Raney Raney is now retired and was first employed with Re- spondent in March 1965 . By the time of the strike he was working in the freezer department on day shift perform- ing meat receiving work involving forklift operation, stocking, and checking . About 2 months into the strike he had spoken informally with his former supervisor, Larry Link, who told him that the strikers could be re- turned to work on condition of passing a physical , taking the polygraph examination, and relinquishing their union card. Soon after this he telephoned Warehouse Superin- tendent Randy Hendley, and was told the same thing by this official. Raney testified to telling Hendley that in such a respect he was not interested in employment, adding that the idea of a polygraph examination was of- fensive because it carried the implication of his being un- truthful after many years of employment with the com- pany. Cross-examination established that in November 1978 and again in January 1979 Cooksey had telephoned Raney offering a night job which Raney had declined on both occasions. During this intervening time he was seeking work through classified want ads, direct contact to prospective employers, and weekly job visits to his own and a sister Teamsters local hall . He later took work with Kunkle Moving Company, performing the physical work necessary to place merchandise cartons on pallets after receiving them from freight trailers . He ulti- mately returned to duty with Respondent on July 9, 1979. Raney's uncontradicted testimony respecting his summer of 1978 contract to Hendley establishes him as an actual polygraph dicriminatee because of such a re- quirement being among those presented to him . There is no significance to Respondent showing here that Raney was only considering a return to work at that point in time, or that he was well aware of the violence as had and was occurring. The single controlling point is that evidence respecting Raney fits exactly the Board's or- dered remedy, and I thus determine the General Counsel has supported its claim for him by adequate proof. Raney also represents the first instance of discussing diligence in a discriminatee's search for work, as well as the intriguing notion of whether Respondent's off-shift work offers represented instances, when declined, of willful failure to mitigate damages. Both of these points will be treated further below, but preliminarily I find Raney to have made regular and varied efforts at acquir- ing interim employment so as not to suffer any tolling of backpay on this basis. On the second point I reject Re- spondent's argument, implicit or explicit as it might be in regard to Raney himself, that his declination on two oc- casions of a night-shift job at the facility was a failure to mitigate. Noting both that Raney had left the State en- tirely in one interim work effort, and that he undertook physical labor with Kunkle that was fully as arduous as any known to exist among Respondent 's classifications, it is neverthelesss true that as to the employer found to have committed unfair labor practices the obligation to reinstate is fundamentally the stringent requirement of a beneficiary's former job , and only when it does not exist an alternative of substantially equivalent character. An 820 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employer did not prevail on a' mitigation argument where a discriminatorily discharged meatcutter had been offered a meat manager trainee position , the Board noting that the individual was not under an obligation to accept such a job because his former position "still exist- ed." Wonder Markets, 249 NLRB 294 (1980). But cf. Kansas Refined Helium Co., 215 NLRB 433 (1974). Here Raney is discussed as the first of numerous cases in which this configuration, or a variation thereof, existed, and because of policy considerations behind the Board's reinstatement remedy plus the fact that Respondent oper- ated under a fundamental misconception that it need re- introduce a discriminatee only into their former seniority district, I hold and determine that job offers extended to Raney in November 1978 and January 1979 are without effect on the remedy to which he is entitled. The more significant analyses of the issue, when reinstatement offers were to the same work shift, will appear below. Cf. Ramona 's Mexican Food Products, 203 NLRB 663, 686 (1973). b. Thomas Cantele Cantele testified to being hired by Respondent in Sep- tember 1972 and working as a truckdriver . He was on in- dustrial leave at the time the strike commenced because of a hand injury, and he recalled that 3 days after com- mencement of the strike he was telephoned at his home by one of Respondent's officials. He was told in this con- versation that the Company had received a medical re- lease concerning his injury and he was asked to come into work. He declined to do this saying at the time that he would not cross the picket line. However, in June 1978 he went to the transportation office and spoke with Manager Gary Morgan about returning to work, observ- ing that the Union seemed to him to have lost the strike. Morgan advised him that a polygraph examination would be required and Cantele declined this saying it should not be necessary. He testified that Morgan then raised the subject of vacation pay, and explained this could be available to Cantele if he would sign certain documents. Cantele was financially pressed at the time and testified that for this reason he followed up on Morgan's sugges- tion by signing what was tendered. He has not after that time had any offer of reinstatement from the employer. After various interim employment at Shamrock Compa- ny, C and H Trucking, and other firms he obtained a po- sition with Thunderbird Fire and Safety where he is now permanently employed. Gary Morgan testified that he was formerly Respond- ent's transportation supervisor and recalled Cantele as an employee on industrial injury when the strike began. He recalled that in early June 1978 Cantele appeared at his trailer office, and after pleasantries inquired about return- ing to work. Morgan testified that he spoke of the re- quirements including that of a willingness to take a poly- graph test. From this the conversation drifted to vaca- tion pay, which Cantele obtained on the signing of a vol- untary resignation. Morgan also possessed inconsequen- tial knowledge concerning employment later assumed by Cantele at Shamrock. Robert Gray testified that he has been operations man- ager of Shamrock Foods for 7 years, and was previously a management employee of Respondent where he had supervised Cantele . He recalled Cantele being employed by Shamrock during 1978 as a truckdriver , and after having two preventable accidents transferring to a night crew job. Cantele then briefly worked as a relief dis- patcher, transferred to the beverage department, and spent the last 6 months of his employment with Sham- rock as a night-shift dispatcher supervisor . Gray identi- fied a termination form of Cantele indicating the employ- ee wanted to enter a different line of work , and testified that this was what Cantele communicated to him at the time of termination in November 1981. Shamrock re- structured the dispatcher supervisor job after Cantele's termination, in consequence of which there was no spe- cific replacement for the position . Gray denied that he had told Cantele prior to the termination of a layoff being imminent. This is another plain case of the General Counsel es- tablishing from the facts that an entitled polygraph dis- criminatee is proven up. The obvious condition voiced by Morgan in June 1978 shows this to be the case, and mandates the determination whereby Cantele's claim is confirmed insofar as his quit being null and void with a continuing, unfulfilled entitlement to an offer of reinstate- ment. However, Respondent has offset his backpay claim by sufficient proof of his having willfully relinquished in- terim employment from and after November 1981, when Gray's credible testimony shows that he quit Shamrock without cause. I reject the General Counsel's theory that it was necesssary for Respondent to plead this specific defense, and otherwise find that Shamrock's restructur- ing was an afterthought in much the same vein as ap- peared from Respondent's own handling of the settled Henry Kochn and Edward McGinnis cases, as well as adjustments made following departure of long-time Maintainence Department Welding Supervisor Curtis Christianson (to be discussed below). It is not unusual for such business changes to occur only when a position be- comes vacant, and I determine from the evidence that Cantele's duty to mitigate was breached upon his depar- ture from Shamrock. c. Rodolfo (Rudy) Castillo Castillo testified that he was hired into Respondent's meat department in May 1977, and worked there until the strike. He observed the strike for some months and then around July telephoned Cooksey from his home stating a willingness to return . Castillo testified that Cooksey stated conditions to reinstatement were the taking of a polygraph examination and surrendering his union card to Respondent. After agreeing to this Castillo reconsidered and did not appear for the scheduled poly- graph examination . He testified there was no further con- tact until late January 1979 when Cooksey telephoned him to offer a return to the meat department . Castillo re- called Cooksey adding that the Union was out, and for this reason Castillo declined the prospects of resuming work. He then received a letter dated January 27, 1979, notifying him of his termination because of having de- clined an available position. ASSOCIATED GROCERS 821 Respondent does not dispute that Castillo was told of the polygraph requirement, but instead contends that his motivating reason for not returning both in summer of 1978 and January 1979 was that the Union was not present to provide representation . Again this is unavail- ing in view of the Board's Order, for clearly the poly- graph test was voiced as a requirement of reinstatement and Castillo was so scheduled. On this objective basis Castillo's status as a polygraph discriminatee has been adequately established, and documentary evidence show- ing mid-June 1978 to have been the point of contact pre- vails over his own reference to the month of July. I thus determine that his backpay claim as set forth in appendix C of the amended backpay specification is confirmed. d. Dennis Falls Falls testified that he was employed by Respondent in 1964 for the grocery shipping department on the night shift running orders and loading trucks. After a year of this he transferred to the nonfood department and even- tually became a working foreman there. The last 10 or more years of his employment prior to the strike were spent as a working foreman in the salvage department. After initially supporting the strike he telephoned Super- visor Randy Hendley from his home one morning in June 1978 to inquire about the chances of returning. He was told his former position was open but a polygraph examination must be taken . Falls answered that he would not do so, but about a month later he received a call from Hendley who was checking on his current inten- tions. A polygraph examination appointment was offered him, but his sentiments about it had not changed. There was a third telephone conversation with Hendley in August, at which time Falls was becoming increasingly financially pressed by medical bills . He learned in this conversation that upon a return to work resumed medi- cal coverage would not commence for 90 days. Falls eventually did return to duty November 12, 1978, with his reinstatement being to a position of order runner on night shift. Falls has uncontradictedly been shown to be a poly- graph discriminatee, this being the clear consequence of his contacts with Hendley and in harmony with his cred- ible testimony as to why he did not return to work earli- er. Falls is also the first of several instances in which those who had been working foremen , or in other cases leadmen, with 20-cent and 10-cent-per-hour pay differen- tials, respectively, were not returned to such capacities nor to the associated pay levels . Respondent makes a blanket defense in this regard , arguing that the employ- er's assignment to such a position is discretionary as a matter traceable to the collective-bargaining agreement and its noneconomic language dealing with management rights. From this Respondent asserts that a legitimate "sphere of authority" exists whereunder it is not obligat- ed to make these exact positions available to returning strikers. I reject Respondent's argument on the working fore- man issue (and relatedly as to appropriate leadmen cases), for the Board's Order supersedes any contention that employer discretion reposes because of a current or former contractual right . Falls has thus not as yet been reinstated to his former position, nor has its nonexistence been shown. I thus determine that Falls is a polygraph discriminatee, and confirm the General Counsel's asser- tion that his right of reinstatement is yet unfulfilled, and his appropriate backpay plus a further running amount for the working foreman differential. e. John Sirovatka and Ray Canales These two individuals are similarly situated . The rein- statement inquiry call-in list maintained by Cooksey during summer of 1978 shows, in harmony with his own testimony on the point, that each of them telephoned him about returning to work but initially demurred when told of the polygraph requirement. As to Sirovatka Respondent defends by arguing that his testimony in the underlying unfair labor practice hearing did not establish that any delay in a return to work was motivated by the polygraph test, and no evi- dence of record is present now to change this status. As to Canales, Respondent argues only that the General Counsel has a burden of proof in showing why any ini- tial refusal to return occurred, and this has not been ful- filled in the particular case. I reject Respondent's defenses in both regards. It is not a matter of Sirovatka never before articulating why he had not returned nor is it true that the General Counsel has a burden of proof of the type envisioned by Re- spondent in its brief. The point is quite direct that record evidence shows both individuals were confronted with the polygraph test requirement upon their return to work inquiry, and this is exactly what the Board's Order runs to. I therefore determine that in both cases a polygraph discriminatee status has been established , and confirm the General Counsel's backpay claims for both Sirovatka and Canales as set forth in special appendix D. f. Samuel Stippick Stippick was employed in Respondent's grocery ware- house in 1977 on the 9 p.m. to 5 a.m. work shift as an order selector and truck loader. He testified that around June or July 1978 he telephoned Cooksey, and conversed with him knowing that Hendley was on the line. Stippick stated he wanted his job back and was agreeable to taking the required polygraph examination. He had added a preference to actually resuming work after making a personal trip to Wyoming, and his polygraph examination was scheduled for the next day at 8:30 a.m. Stippick testified to reconsidering the matter and chose not to take the exam, asserting that aside from this condi- tion he would have gone back to work immediately. This sequence of events is strictly in keeping with what shows on Cooksey's log, when Stippick is listed in early July but recorded as a "no show." Respondent's defense in regard to Stippick parallels what was raised as to Sirovatka above. While a named person alleged to have been affected by polygraph dis- crimination as set forth in the original unfair labor prac- tice complaint, Stippick was not among the 14 witnesses whose testimony was actually discussed by the adminis- trative law judge. This consequence is even less reason to adopt Respondent's argument as to Stippick, and from 822 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the record evidence of this case and import of the Board's Order as now so repeatedly mentioned, I deter- mine him to be a polygraph discriminatee and confirm the General Counsel's computation of backpay due him. g. Richard (Sammy) Williams Williams testified that he was originally hired in 1965 for work in the dry grocery warehouse, and by the time of the strike was a truck spotter working an afternoon shift. He testified to telephoning Respondent 's personnel office on August 27, 1978, and speaking with either Mar- tinez or Former Personnel Manager Jay Pickup, asking what it would take to get his job back. He was told that a polygraph examination probably must be administered which he declined to take feeling it was not necessary. He then inquired about vacation pay and was told he must terminate in order to get that money . This conver- sation also involved reference to the possibility that Cooksey might want to speak with him. He went into the personnel office the following day, accompanied by his wife Rose Marie Williams, and saw Martinez. He re- turned certain company keys and signed papers that were tendered to him for obtaining vacation pay, which was received about a week later. Williams testified that following this he made remarks to various former co- workers as he exited through the produce department, with reference to Respondent's president as a dictator. Williams explained that this was his own reaction to Re- spondent's persistence with the polygraph test, noting that his loyalty to the Employer had been demonstrated in part by the 60-day sick leave accumulation that existed in his case at the time of the strike. By mid-July 1978 Williams had become a casual employee at Golden State Foods, earning about the same as an interstate driver as he had while with Respondent. He later obtained regular employment at Fry's. William's wife corroborated his testimony insofar as whether or not the couple were present with any compa- ny functionary other than Martinez himself, and whether there had been any opportunity for him to have made angry remarks in the personnel office area itself as are at- tributed to him. Further, she recalls that what her hus- band did say about "a dictator" was done in a normal voice tone, and after the signing of all termination papers. Finally, she denied that he had tarried on their way out from the offices, or that he had left the immedi- ate reception area in which she waited briefly upon their first arrival. Respondent presented Thomas Martinez and James Grammatico as witnesses on this issue. Martinez was as- sistant personnel director as of the summer of 1978 and recalled the occasion of Williams coming in to terminate. Martinez testified that Williams had said he was there for his vacation pay and to see someone in management. Martinez recalled that after a short span of time he saw Williams again, and this time he indicated- that the termi- nation process was complete and he was awaiting his check. Martinez does not remember any mention of the polygraph with Williams. James Grammatico testified that he was Respondent's warehouse coordinator as of August 1978, sharing a front office with Superintendent Tom Gardner. He re- called the occasion of recognizing Williams' voice, and then observing him speaking to a secretary as he said he would no longer work for a dictator. At or about this point Gardner appeared to ask if the remark meant that Williams was quitting, and when this was affirmed Gard- ner left to get a termination form. James Grammatico then saw Williams proceed into Martinez' office. This claim involves several evaluations of credibility. As to the original telephone conversation of August 27, 1978, the testimony is uncontradicted for neither Marti- nez nor Jay Pickup, in his appearance as a witness on other matters, alluded to the subject. The events of August 28, 1978, and the light they might shed on Wil- liams' reasons for signing the termination form, are what constitute the factual dispute. I am not satisfied that Wil- liams has given a fully accurate rendition of all that tran- spired, and while Rose Marie Williams was impressively candid this does not mean that she necessarily retains a complete memory of what unfolded. Martinez displayed a limited capacity for details and was generally vague on the incident, however, James Grammatico was a witness of singularly impressive demeanor and delivered a per- suasive version of what actually occurred. I am con- vinced from this that Williams had brief contact with Gardner, and that he was sufficiently animated to have made the "dictator" remarks while still in the personnel office. The larger question here is how this translates in regard to the claim advanced on Williams' behalf, with particular reference to the originating telephone call of August 27, 1978. Here the phrasing by whomever it was he spoke to about a polygraph test was that it "prob- ably" would be asked of him. However, a probability is not a condition, and there is no indication that Williams had any contact with Cooksey who was chiefly handling reinstatement inquiries. Practically all significant contacts by inquiring strikers during the summer of 1978 months were made to Cooksey, with Hendley being the person next most likely to make authoritative comment. This general pattern can be seen from the administrative law judge's treatment of 14 separate witness evaluations in the underlying unfair labor practice case decision. It is also noteworthy from the affidavit of Gerald Manning, in evidence as Respondent 's Exhibit 43 on an unrelated point, that this individual remembered his own call-in to Martinez in August 1978 and that nothing was mentioned about polygraph testing in the conversation that ensued. The credited events in the personnel office on August 28 only add direction. From James Grammatico's clear and confident description it is seen that Williams was specifically interested in his vacation pay. It is conjectur- al as to what Williams may have been aggravated by as the 2 eventful days unfolded, for that point in time was halfway through a period in which all contract negotia- tions between the parties were stalled and he was being frustrated in his own individual case by processing poli- cies that denied immediate receipt of accumulated vaca- tion pay. I do not, however, attach any weight to the re- corded reason for termination, that of seeking other em- ployment, because the record does not establish this to be anything more than a perception of whichever official ASSOCIATED GROCERS 823 handled the termination process and Williams in this regard credibly denied that he had so reported . Overall, I do not view Williams as a polygraph discriminatee, for there is insufficient probative evidence to show that this aspect was ever raised as legally to be a condition prece- dent to reinstatement. I thus determine that Williams' claim is without merit and he is owed no backpay. 3. Vacation pay quits An employer cannot be forced to accept vacillation in regard to whether employees are or are not on strike. The law and related doctrine has carefully balanced the respective rights involved when economic pressures are applied. In an economic strike, and this one remained at all times only of that character, it is only the uncondi- tional offer of a return to work that removes the employ- ee as one voluntarily withholding services. It is this pros- pect to which the employer's antennae must be constant- ly attuned, for to ignore such an act is to face the peril of accumulated monetary liability . However, absent that particular act the striker remains only as an instrument of the economic pressure and its fundamental objective. Except for extraordinary cases which some unfair labor practice conduct may be associated to in an apparent act of terminating while on strike, the ordinary meaning and consequence of a severance from employment will follow. On this issue the General Counsel contends that Roylyn, Inc., 178 NLRB 197 (1969), and P.B.R. Co., 216 NLRB 602 (1975), control, as illustrations of the princi- ple that strikers who resign merely to obtain vacation pay do not lose their protected employee status. Re- spondent contends that where vacation pay is not avail- able to employees under contract language as reasonably interpreted, the quitting of employment by a striker to advance their receipt of vacation pay severs the employ- ment relationship and exonerates the employer from any backpay claim. I conclude that Respondent's view of the facts and law is more valid respecting this issue . There is no showing that any of the requesting employees were entitled to va- cation pay in terms of their own anniversary dates or the last contract language on the point . More importantly there was no showing that any nonstriker or returning striker was extended any consideration beyond the limits of what was available to the striking employees involved in these claims. Roylyn was a representation ("R") case proceeding in which various eligibility issues turned on "abandon[ment] of [striker] interest in their struck jobs" with the Board rendering its decision "On the facts of this case." It is significant that in Roylyn the Board added the following observation: We do not, of course, question the validity of the statement that an employer need not finance a strike against itself. [Fn. 3.] The same emphasis on "abandon[ment ] of interest" in a struck job was perpetuated by the decision in P.B.R., which again was an "R" case in which the Board also significantly alluded to the determinations being made as reached "on a case-by-case basis." An interpretation comparable to that made here was present in Ipco Hospi- tal Supply Corp., 255 NLRB 819 (1981), and I am satis- fied that this recent Board decision , coupled with its holding in Laredo Coca Cola Bottling Co., 258 NLRB 491, 501-503 (1981), and cases there cited, is the relevant posture of doctrine on the subject. To hold otherwise would permit the scenario of all 400 strikers, or as many of them as had not taken 1978 vacations , applying en masse for this benefit , and if required of the employer having the sudden effect of cash outlay in the general range of one-quarter million dollars . I do not read the cases as indicating this to be a result the Board would countenance in its balancing of legitimate statutory inter- ests. a. Richard Bacchus Bacchus testified that he had worked for Respondent since 1970. At the time of the strike he was working a midnight shift in the salvage department emptying trucks of damaged goods or returns. After the strike was under- way Bacchus telephoned Pickup in August 1978 to in- quire about owed vacation . He was told that a termina- tion from employment was needed before vacation pay could be disbursed. A few days later he met with Pickup and executed the termination form on grounds that he needed his vacation pay immediately. Bacchus testified that he was not employed at the time of making the first telephone contact to Pickup, but by August 14, 1978, had been employed at Safeway at a point in time prior to turning in his resignation . Safeway had not pressured him to resign from employment with Respondent in order to take that job. The General Counsel contends that a make-whole remedy applies to Bacchus, noting there is evidence of record that Martinez had advised him how a polygraph test would be required for his return to work . Although raising this point in the brief, the General Counsel does not adopt the concomitant claim that Bacchus' backpay period begins any earlier than October 9, 1978 . Respond- ent contends that Bacchus had secured a favorable job with Safeway, and took his vacation pay only as part of winding up any affairs with Respondent. On the fundamental point I hold for reasons outlined above that even if Bacchus quit solely to receive vaca- tion pay, this did not disturb the consequences of his be- coming a former employee who happened to leave in the course of the strike . On the additional point of the poly- graph subject being injected , I discount the General Counsel's argument that the evidence shows this to have been said. Bacchus did not thus testify himself, a void so significant under circumstances of this case as to inde- pendently show it a nonexistent matter. Additionally, I have expressed reservations above about Martinez' memory, and I give no weight to his vague and uncer- tain association of the polygraph subject with any con- tact received from Bacchus . On this basis I determine that the claim on behalf of Bacchus is without merit, and remedial action is not available to him. 824 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD b. David Grammatico David Grammatico testified that he was hired in August 1975 and by time of the strike was working in the dry goods department on an afternoon shift loading and spotting trucks. In late July 1978 he telephoned Re- spondent's personnel office to inquire about vacation pay and spoke with Martinez. He was told that this could be obtained only upon crossing the picket line to work or by quitting. He then spoke by telephone with Hendley and was told the same thing . Being desperate for money at the time he followed through on steps to obtain his vacation pay, although not actually recalling that a vol- untary termination was signed . Grammatico testified that he has never received an offer of reemployment from Respondent. He sought interim employment after the strike commenced and worked a series of jobs until around 1982 when he obtained regular employment at Don Sanderson Ford as a technician at $10 per hour. Earlier he had worked at Pioneer Ford , Mel Clayton Ford, Sunland Lincoln-Mercury, briefly at Campbell Transmission, and then Greenway Automotive for about a year immediately preceding Sanderson . He testified that his work at Sunland Lincoln-Mercury was terminat- ed over a radio-playing incident, which merely involved his use of a personal radio while at work which was un- justifiably interfered with by a relative of that company's service manager. Here the General Counsel contends that a make whole remedy remains applicable to David Grammatico, while Respondent contends he merely needed and obtained extra money in the course of returning to his more fa- vored work as a mechanic. On the basis of reasons out- lined above, I determine that the claim on behalf of David Grammatico is without merit, and remedial action is not available to him. c. Hanley Henderson Henderson testified that after originally being a casual employee he went on fulltime with Respondent in Janu- ary 1976 as a truckdriver hauling produce on local runs. After originally supporting the strike he telephoned the personnel department in July 1978 inquiring about vaca- tion pay. He was told at this time it was payable only should he resign, and later that month he went to Re- spondent's transportation office where Supervisor Ed Schaefli, with Supervisor Gary Morgan present, ten- dered him the papers for a voluntary termination. During this conversation Henderson mentioned to Schaefli the possibility of returning to Indiana, and in fact the termi- nation form showed relocation to another state as the given reason. In the final contact with Schaefli this offi- cial had asked if he was quitting Respondent , to which Henderson had replied in the affirmative adding that it was done "under these circumstances." This action gen- erated the issuance of vacation pay later that summer. Henderson testified that he had no real intention of re- signing from Respondent, but did so only to obtain needed money. In actuality he did return to Indiana in late July, seeking work and living with a relative there. His Phoenix area home was listed with a realtor and sold the following month. He obtained work on September 8, 1978, with McCune Company in Indiana as a truckdriver and had gross earnings there in the first full calendar year 1979 of around $30,000. This interim employment slacked off during 1980, in which based on sporadic em- ployment Henderson grossed about $15,000. He testified that while vacationing back in the Phoenix area in De- cember 1979, he had told company official George Brown about having an interest in returning to duty with Respondent. Henderson returned to the Phoenix area and obtained work at Fry's in May 1981 where he remains. Here the General Counsel contends that the facts do not show abandonment of interest in employment, while Respondent contends that Henderson simply resigned to move to Indiana without any intention of returning. This relatively short-term employee displayed most ordinary indications of severing employment with Respondent. It is a strained interpretation of the limited evidence show- ing any retention of interest on Henderson 's part to say that because of token contact to Respondent over a year after a resignation, and an ultimate return to the Phoenix area as a personal relocation, that he did other than manifest any ordinary termination from employment before the end of the strike in which he had participated. On this basis I determine that the claim on behalf of Henderson is without merit, and remedial action is not available to him. d. Jack Scheeringa A current affidavit of this individual, coupled with his letter to Respondent dated September 10, 1978, is the sole extent of facts respecting his claim . In these Scheer- inga states he had been a warehouseman since 1975, and had joined the strike as an actual picketer. After' his strike benefits ran out he became pressed for money. Having talked some months earlier with Hendley for in- formation on the point, he had learned that to obtain va- cation pay it was necessary to terminate . Believing from this that a written resignation was necessary he wrote the letter, referring to it only as a "formal resignation" and as an expression of appreciation for the "week's va- cation pay I have coming at this point" with pleasant gratuitousness added. The General Counsel rests on the essential theory of its vacation pay quit argument , while Respondent con- tends Scheeringa's resignation is entitled to acceptance at fact value. From these known facts I see nothing to dis- tinguish this case from others in which I believe that a desire for receipt of vacation pay, knowing that it must be accompanied by an official termination as a legal sev- erance from employment by the individual , is outside the scope of any remedy available here . Cf. NLRB v. Mara Sales & Equipment Co., 626 F.2d 567, 575 (7th Cir. 1980). On this basis I determine that, for reasons given above, the backpay claim on behalf of Scheeringa is without merit, and remedial action is not available to him. e. Wayne Zuhlke Zuhlke testified that he was first hired by Respondent in September 1970, and for the approximate 3-year period prior to the strike worked an afternoon shift in the nonfoods ("re-pack") department stamping cigarettes ASSOCIATED GROCERS 825 and pulling orders . After initially supporting the strike he telephoned Hendley around early July 1978 and offered to take the polygraph examination which he understood was being routinely required . An appointment was scheduled for him but he reconsidered taking the poly- graph because of personal pride in not wanting to cross the Union's picket line. Zuhlke testified that later his fi- nances were low and he needed vacation pay, which Re- spondent's personnel department had told him was pay- able only upon voluntary termination or the arrival of his vacation anniversary date that September. On this basis he went to the personnel department and spoke with Pickup, telling him that because of desperate finan- cial straits he would sign termination papers . This was done and he commenced employment at $5.50 per hour as a yardman with Smith Pre-Cast, a supplier to the con- struction industry, where he promised that he would ter- minate himself from Respondent in connection with their offer of employment . In November 1979 he saw help- wanted ads by Respondent and contacted Martinez, then went into the personnel department to make application from which there was no response. Early in 1980 he started employment at Fry's after telephone contact with Pickup to inquire about what sort of reference he would be given and whether he had been blacklisted for em- ployment by Respondent. Pickup agreed to get back to him about his inquiries, and several days later made con- tact saying that company policy affecting him was that of not hiring back those who had quit during the strike. Zuhlke had a final telephone conversation with Cooksey in 1980 inquiring about openings, and was told that Re- spondent was laying off at the time as well as reference again to the concept of his having quit during the strike. His employment at Fry's became of regular permanent character in June 1980, although he has retained a desire for reinstatement with Respondent. The General Counsel again contends that the individ- ual exhibited no real intention to abandon employment, while Respondent contends that Zuhlke was motivated by the desire to take immediate employment while the strike continued and to avoid recrimination by those still supporting the Union. There is nothing to distinguish Zuhlke's case from others in which vacation pay was sought, and in fact his testimony is the best clear reflec- tion of how the principle of deferred vacation pay until an individual's anniversary date was reached is set forth. The General Counsel makes no contentions that the asso- ciation of the polygraph test with any contacts by Zuhlke is applicable to his claim . On this basis I deter- mine that the claim on behalf of Zuhlke is without merit, and remedial action is not available to him. D. Slotting The Union's unconditional offer on October 4, 1978, of a return to work by all its striking members established October 9, 1978, as the date from which nonpermanently replaced but unreinstated strikers would he entitled to the commencement of backpay rights. As the parties achieved individual resolution of claimant cases during the time period prior to the backpay hearing, an issue arose as to how this date of October 9, 1978, would be applied. This related to the numerous instances in which Respondent resolved polygraph discriminatee claims as to persons who, but for the polygraph test, would have returned to work at an earlier time than the end of the strike. Additionally there remained the question of what impact, if any, shall result from resolutions reached in this supplementary proceeding, with respect to those liti- gated as polygraph discriminatees and other special cases, including individuals whose claims were pressed solely by the Union as a separate party in interest. The basic group affected is individuals of the warehouse, transportation, and produce departments, who were con- sidered by their respective seniority ranking for reinstate- ment. The issue, variously described in the record as "slotting," "starting date," or "domino effect," is com- plex and highly conceptual , thus lending itself as one for which the parties respective briefs on the point sharpen what is at stake. These contentions read in part as fol- lows, with excerpts being first from the General Coun- sel's brief and then that of Respondent: The forty discriminatees in issue all have backpay beginning dates postdating October 9, 1978, and were listed in Appendix B of GCX 2 and 28. Their respective post October 9, 1978, backpay beginning dates coincide with the dates that vacancies oc- curred after the strike, to which they should have been reinstated. However, inasmuch as backpay be- ginning dates were established and assigned by se- niority ranking and eligibility as reflected on GCX 7, 8, and 9, the correctness of the post-October 9, 1978 backpay beginning dates would be dependent upon the computation of the backpay beginning date for the other two [those referred to as "poly- graph discriminatees" and those who were assigned a backpay beginning date of October 9, 1978] cate- gories. It should be noted that the parties agree that this particular issue involves only a mechanical ap- plication and analysis of GCX 7, 8, and 9 and does not address the different and much larger issue as to what positions should have been offered to the dis- criminatees ... . In order to understand how the backpay begin- ning dates for the partially paid discriminatees listed in GCX 26 were determined, it is necessary to un- derstand the structure and composition of GCX 7, 8, and 9. These seniority district worksheets list the striker/discriminatees in order of their seniority as of the strike's October 4, 1978, termination date. October 9, 1978, backpay beginning dates were then assigned to the most senior strikers in numbers par- alleling the numbers of temporary strike replace- ments employed as of the strike's termination within the three affected seniority districts: warehouse, transportation, and produce. Once the number of temporary strike replacements were exhausted, post- October 9, 1978 vacancy dates were then assigned, continuing to follow the seniority rankings. The starting date dispute between General Counsel and the Respondent is explained , in part by the General Counsel's modification of the "10-09-78" backpay starting dates originally assigned by the Respondent to certain striker/discriminatees characterized on 826 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the record as "polygraph discriminatees" and listed in Appendix C of GCX 2 and 28. . . . Consistent with the General Counsel's theory that [certain fully paid polygraph discriminatees] backpay start dates should coincide with the date that their appli- cations for reinstatement were denied because of the Respondent's polygraph procedures, previously found by the Board in the underlying procedure to be unlawful, their "10-09-78" backpay start dates were modified to reflect the dates set forth in GCX 7, 8, and 9. As indicated on GCX 7, 8, and 9, this modification, in the General Counsel's opinion, then created additional October 9, 1978, start dates to then be assigned to those individuals whose seniori- ty ranking had previously only entitled them to a post-October 9, 1978, backpay start date. This "ripple" or "domino effect" would have corre- spondingly "moved up" the post-October 9, 1978, backpay start dates of all discriminatees whose backpay commenced after October 9, 1978. .. . Logic would suggest that the General Counsel is correct in his contention that if someone previously assigned an October 9, 1978, backpay start date has an actual backpay start date pre-dating October 9, 1978, then this creates an additional October 9, 1978, position to be given out. It should be remem- bered that the October 9, 1978, start dates parallel the number of temporary strike replacements still em- ployed as of October 4, 1978, and who accordingly should be displaced by returning strikers.... The fallacy with [Respondent's] argument is that it treats the polygraph discriminatee as a temporary replace- ment as of October 4, 1978. The polygraph discri- minatee, who should have been reinstated prior to the strike's conclusion, is a permanent employee en- titled to the same status as a non -striker or any other striker reinstated prior to the strike's conclu- sion. If the Respondent argues that if it had to rein- state a polygraph discriminatee prior to October 4, 1978, then it would not have hired a temporary strike replacement, then such an argument is specu- lative. As found . . . in the underlying proceeding, the Respondent's personnel department was taxed to the limit to find replacements for the more than 300 individuals who had struck. There was signifi- cant turnover among the strike replacements during the strike and the more than 1000 strike replace- ments hired during the strike all signed statements acknowledging that they were temporary employ- ees. Given such a 3:1 turnover ratio, no one could predict what and how many temporary employees would still be employed as of October 4, 1978. Therefore, it cannot be said that the number of tem- porary replacements, as of October 4, 1978, the cru- cial determinant of the number of strikers [who] would be accorded October 9, 1978, backpay start dates, could be influenced in any degree by the pre- October 4, reinstatement of polygraph discrimina- tees. [G.C. Br. pp. 4-9. Footnotes and transcript ref- erences deleted.] Persons who were assigned [the 10/9/78 starting dates originally] received them because of the Board's Decision. In that Decision, there were two categories of discriminatees, those that resulted from the polygraph test and those that resulted from Respondent's treating all strike replacements as permanent. The parties have agreed that there were eight positions in the produce department not held by pre-strike employees or permanent replace- ments at the end of the strike, thus, eight positions in the 10/9/78 starting dates for them . One of these persons was shown originally as being Gerald Miner. [See GCX 9.] However, if Miner is treated as being entitled to a backpay starting date of 6/21[78] and extending beyond 10/9, as it was in this case, the 10/9 slot for him remains filled be- cause he is treated as holding one of the slots held by a temporary replacement. (The existence of eight temporary replacements in the produce department at the end of the strike is the reason for creating eight slots in the first place .) Miner, therefore, still continues to oust the temporary replacement hold- ing his slot, and only seven then remain for alloca- tion to the other seven most senior people on the list as of 10/9. Thus, Miner's moving up to the 6/21 date does not vacate the slot. He continues to fill that position since he is treated by both parties as hypothetically still holding that position at 10/9 for purposes of computing his back pay. If General Counsel's position were to be sus- tained, the result would be that there would be nine discriminatees receiving backpay, starting at 10/9, when there were only eight 10/9 positions to be filled hypothetically for purposes of determining backpay. General Counsel's position would assume that Miner could be holding a position actually held by a permanent employee, that is, a non -striker, re- turned striker, or permanent replacement. That cannot be the case since the "still out" lists were constructed based on the fact that these persons were still at [Respondent] as of the end of the strike and entitled, as the Board found, to be retained by the Respondent. So Miner cannot be said to be holding one of those positions. The same thing holds true for the warehouse and drivers lists, but affecting a larger number of indi- viduals. [R. Br. 180-182.] I believe the General Counsel has more realistically analyzed the essence of this controversy. It is particular- ly significant that the point in time of early October 1978 was still one of disruption from effects of the strike, and Respondent administered a polygraph test as late as Sep- tember 25, 1978. The overabundance of temporary em- ployee replacements had not as yet settled out in terms of their remaining in employment, either of their own volition or as a matter of imminent displacement by re- turning strikers. More importantly it would follow that operational distortion would still exist in terms of job fa- miliarity and adequacy of task performance. The conjec- ture surrounding these factors is what validates the Gen- eral Counsel's essential point, that regardless of whether ASSOCIATED GROCERS 827 a polygraph discriminatee actually had been reinstated prior to October 9 , 1978, the situation on that exact date is what must be looked to and from this it can be accu- rately determined that the greater number of job spaces were then available to returning strikers. The General Counsel terms Respondent's contrary argument to con- tain the "fallacy" of considering that reinstated poly- graph discriminatees had no better standing than a tem- porary replacement, and while I adopt this view I add that Respondent is essentially attempting to substitute by a showing of dollars paid out in backpay what could only have been achieved by proof that an even greater number of individuals had in fact then been engaged on a permanent basis. Since the finite number of such persons so found by the Board is the outer limits of this defined group, I determine that the General Counsel's theory is valid and appropriate in resolution of this "slotting" issue. See MCC Pacific Valves, 244 NLRB 931 (1979); Harrison Ready Mix Concrete Co., 272 NLRB 331 (1984). E. General Elements of Respondent 's Reinstatement Program Subsequent to October 1978 As Respondent's vice president in charge of operations during 1978, Cooksey had been responsible for reinstat- ing former strikers. The essential procedure he estab- lished was to work from departmental seniority lists and make contact with the most senior unreturned person as openings arose . In carrying this out Cooksey did not narrow such opportunities to a specific functional or "cost center" area of a department , but instead treated those from a given seniority department as potentially available for any position within that department. As the largest of the departments the variations in grocery warehousing were most prominent, and here Cooksey routinely inquired of former specialty employees , such as those in grocery repack, deli operations, or the new insti- tutional department, whether they were available for grocery shipping work as an entry level position which often came open. While there are minor internal vari- ations in starting time of shifts, Cooksey considered the facility to be fundamentally on a day or night basis, and this was a controlling notion in whether to permit an un- reinstated striker to pass an offer of recall and yet remain eligible for further consideration. More specifically an in- dividual previously on days would not forfeit any rein- statement rights by declining a night job, and persons who did return to positions other than those formerly held were advised that job bidding procedures of the past would still be applicable should there be a desire for future change. Contact by Cooksey was typically by telephone and he maintained extensive notes of whatever resulted. Fre- quently he would write followup letters of confirmation relative to understandings reached for individual cases, or to record a termination from employment where this in his view was the consequence of the contact. Cook- sey's source material in making the contacts was primari- ly what was on record in Respondent 's personnel office insofar as employee addresses and home telephone num- bers were concerned, including any changes reported during the poststrike period. As a supplementary proceeding to the basic litigation which this case concerns, the standard truisms concern- ing rights retained by economic strikers are an accepta- ble prelude to various aspects of the backpay controver- sy. Thus the economic strikers for whom an uncondition- al group application for reinstatement was presented have an entitlement to their former positions where per- manent replacements do not occupy such jobs. Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969). This fundamental right of reinstatement may end when, among other things, "regular and substantially equivalent employment" has been obtained by an individ- ual discriminatee . The Board declines a "mechanistic ap- plication" of such statutory language, and instead deter- mines ad hoc by "an objective appraisal of a number of factors, both tangible and intangible" whether or not such a condition has eventuated . Among the factors noted are "fringe benefits (retirement, health, seniority for purposes of vacation , retention, and promotion), loca- tion and distance between the location of the job and an employees' home, differences in working conditions" Little Rock Airmotive, 182 NLRB 666 (1970). The right of reinstatement also extends to jobs which become available and for which a discriminatee is qualified, this in keeping with employer policies that uniformly and nondiscriminatorily apply an objective basis of recall such as seniority. See Carruthers Ready Mix, 262 NLRB 739 (1982). Although the Board does not require a spe- cific rule that an offer of reinstatement take any particu- lar form, it must be "a good-faith effort to communicate such an offer" and that the effort shows "all measures reasonably available" were utilized to make known that the former striker "is being invited to return to work." J. H. Rutter-Rex Mfg. Co., 158 NLRB 1414, 1524 (1966). F. Credibility Major issues of this supplementary hearing arise from the contacts made by Cooksey, both in terms of the number of claimants involved and in terms of the funda- mental controversy over what constituted a valid offer of reinstatement in terms of the Board's remedial author- ity and subsidiary questions such as a discriminatee's ob- ligation to reasonably maintain his whereabouts on file with the employer in circumstances such as this. As an overall matter I am considerably impressed with the testimony of Cooksey, and on demeanor grounds strongly tend to give it full credence. His recitations of contacts made was done with substantially persuasive detail, giving rise to a decided impression that an honest attempt at accurate recall was being presented . I am fully mindful of the self-interest that is involved , and have considered the General Counsel 's forceful countering ar- guments that Cooksey's testimony was wooden , suspi- ciously repetitive, and unreliable because of the over- whelming number of contacts from which confusion could well have resulted. After careful reflection on the significant point, I credit Cooksey as a general proposi- tion, making exception only in those specific instances in which the record as a whole convincingly shows him to have been mistaken . I recognize that this finding involves discrediting of the testimony of various other witnesses, 828 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD many of whom left no particular indication of intending to conceal the truth . As to this I can only allude to the high degree of suggestibility that carried over from the extraordinary events of 1978, and that countervailing self-interest is fully present on the part of the General Counsel's many claimants . The stated resolution of credi- bility, however, is what affects many of the individual treatments to follow. G. Critical Contacts Subsequent to October 1978 1. Jerry Dawa Dawa testified that he was hired into Respondent's produce department in March 1977, and by the time of the strike was working an afternoon shift of 5 p.m. to ap- proximately 2 a.m. doing order pulling and truck loading at $7.17 per hour. He recalled that in April 1980 Cook- sey had telephoned him at home, offering a night job in the grocery warehouse with Tuesdays and Wednesdays off. Dawa declined this stating he was unfamiliar with operations of that department and apprehensive that he would not be able to meet production quotas that applied there. He recalled Cooksey saying that if he declined the offer it would mean termination, and in fact Dawa did receive a letter to that effect soon thereafter . He denied receiving an earlier letter dated in May 1979, signed by Cooksey and sent to his home address at the time, making an offer of employment in the grocery depart- ment with express reservation of an entitlement to trans- fer into produce upon a vacancy occurring there. Cooksey testified that he had first contacted Dawa in May 1979 at a point when, upon the main body ware- house seniority roster being exhausted (as to prior shift), he was following a subsidiary procedure of contacting produce district discriminatees to offer them grocery work before outside hiring was undertaken . As part of this approach Cooksey testified that he sent Dawa a letter dated May 29, 1979, to that effect, and a certified mail receipt card was signed for by Dawa on May 31, 1979. Cooksey testified further that when Dawa's name came up in April 1980 for a return to produce , he tele- phoned this employee and had the job declined because of holding better employment . Dawa was then sent a subsequent letter of termination by Cooksey dated April 25, 1980, alluding to their telephone conversation on the previous evening. Respondent placed in evidence an- other certified mail receipt signed by Dawa on April 26, 1980. It is evident here, and I so find, that Dawa is confused insofar as his recollection of contacts from Cooksey is concerned . As shall be implicit in several of the cases to follow under this heading , I expressly discredit the testi- mony of Dawa on critical factual issues of his claim. Other individuals were shown to have been receiving comparable contacts at the time, and the existence of both postal receipts is fully indicative of Cooksey's credi- bly described version of the Dawa case. The April 1980 offer of produce department work was a valid fulfillment of his reinstatement rights, and I expressly find that he did so decline this position as Cooksey contends and shows to have been confirmed in writing. I determine that the General Counsel's claim on behalf of Dawa is without merit, excepting only such admitted backpay and accrued interest as is due him for a portion of 1980's second quarter. 2. Jesus (Jesse) Fernandez Fernandez testified that he was hired by Respondent in February 1961, and initially performed order and load- ing work on the night shift . He then went to grocery re- ceiving work where he remained for succeeding years, becoming the senior working foreman in that department by 1967. This put him in charge of boxcar unloading at the rail dock, where he directed or assisted in such ac- tivities. His superior was John Roberts, supervisor of the grocery receiving operation. Fernandez testified that he originally supported the strike, but at a time in August 1978 stopped at Roberts ' home for conversation with this individual with whom he had come to be on friendly terms over the years . Fernandez testified that Roberts re- marked to him in this conversation that he and other working foremen would never be returned by Respond- ent to their exact former positions . In November 1978 Cooksey telephoned with the offer of a night-shift posi- tion, explaining that he could pass on it if he chose. Fer- nandez did so at the time, but the following January he contacted Cooksey to then request the work that had been offered . Fernandez was returned to a job running orders on the midnight shift under Supervisor Jim Bris- ter, and without having a working foreman premium added to his hourly rate . After returning he often asked for his old job, and noticed that when more desirable forklift assignments arose on the shift they were never provided to him even though highest in seniority for such fill-in. He testified that after 2 weeks and 2 days in this situation he resigned in frustration over the condi- tions. Fernandez added that Cooksey's response , and that of Brister and Roberts, to his inquiries about converting to a working foreman, was to have "no idea " what those prospects might be. Respondent contends that Fernandez had relinquished the order runner job in the warehouse on the midnight shift for no better reason than that he did not like it, and that his interim employment at both Pacific Motor Trucking (PMT) and Consolidated Freightways was sub- stantially equivalent to his former job. I reject both de- fenses, noting first that the reinstatement to grocery ship- ping on midnight , even though it is shown Fernandez was making quota as he worked, was not a valid fulfill- ment of his rights because it did not include the capacity of benefits of the working foreman position he had occu- pied for so long a time before . The job at Pacific Motor Trucking is not known in detail beyond its nature as a checker at a given hourly rate, and the position at Con- solidated Freightways, while reaching an hourly rate of $13.20, involved work as a dockman but without the characteristics present before when Fernandez was the most senior working foreman at Respondent 's large facil- ity and first substitute for the divisional supervisor. On this basis I determine to confirm the General Counsel's claim on behalf of Fernandez for reinstatement and run- ning backpay, including as it does a calculation for unpaid working foreman differential. ASSOCIATED GROCERS 829 3. Gerald Christman Christman testified that he was hired by Respondent in July 1972, and first worked in dry grocery shipping on the night shift . This involved filling orders and loading trucks. After about a year he moved to a job spotting trailers on the midnight shift, but with weekends off for the first time. He then changed to the frozen food and deli operation, filling orders and loading trucks. By the time of the strike he was working in a new department serving institutional customers. Christman supported the strike and after it ended was eventually contacted by Cooksey via telephone in March 1979 . He was offered a job in the dry grocery department with an answer ex- pected from him by the next day. Christman told Cook- sey that he understood being entitled to pass on such an offer, if it was not to his former job as it existed when the strike commenced. To this Cooksey answered that his only obligation was to offer a warehouse job with re- stored seniority. Christman telephoned back to Cooksey before the final deadline on acceptance or rejection, and said that the Union had confirmed he was entitled to pass on the offer which he had decided to do. Cooksey said that such a course would be at peril of being termi- nated, and Christman in fact soon received a termination letter. He testified that he declined the offered work in grocery shipping because the work surroundings were hot and dirty, that he was not comfortable running orders and that it was hard for him to meet the produc- tion quota used in that operation . He added that over his years of experience with Respondent jobs in dry grocery shipping were considered merely entry level for new em- ployees. Respondent relied on its contention that the offer of any position of the same shift within the warehouse dis- trict to one holding that seniority extinguishes their rein- statement and backpay rights . Here Cooksey testified in agreement with Christman that in early March there were conversations between them in which the point was deliberated, particularly insofar as Christman had obtained advice from the Union that he need not accept the grocery warehouse work. The termination from em- ployment that was visited on Christman was set forth in Cooksey's letter dated March 8, 1979 . This letter alluded to the dispute over the correct "return procedure" where an offer was not to a "former work area," and to an asserted contact by Cooksey with Christman's wife to ascertain his answer on the point . The letter stated that absent a final reply by March 12, 1979, the letter would serve as Christman's termination. Cooksey denied hear- ing from Christman after the date of the letter. This is an instance in which I credit Christman's testi- mony of having given Cooksey a final answer on the job offer before the March 12, 1979 deadline expired . Christ- man so testified, however, that it is actually academic to the issue because this reinstatement offer was part of the pattern which I believe as a matter of law to be insuffi- cient in fulfilling Respondent's obligations under the Board's Order. Job tasks and various working conditions were highly dissimilar between the physically demanding work of running grocery orders and the specialized prep- aration of institutional product orders in an entirely dif- ferent environment . On this basis I determine to confirm the General Counsel's claim on behalf of Christman for reinstatement and running backpay. 4. Jon Martin Martin testified to having been hired by Respondent in February 1971 for work in the dry grocery warehouse as an order selector . This was still his position when the strike commenced, at which point he was working at the 9 p.m. to 5 :30 a.m. shift with Fridays and Saturdays off. After the strike terminated he was first contacted by Cooksey in a 10 p.m. telephone call to his home on Janu- ary 23, 1979, with the offer of a job in the dry grocery warehouse, carrying a 3 p.m . starting time and Tuesdays and Wednesdays off. The terms were that it must be ac- cepted or he would be terminated from employment. Martin answered that he would not accept on those con- ditions and Cooksey could do what he saw fit. Martin was given to expect that a termination letter would issue, but he denied ever receiving one or that he was ever of- fered another position by Respondent. At the time he was performing temporary work at $3.50 per hour, and his specific reason for not accepting Cooksey's job offer was because the Union's business agent had advised it was not necessary to accept on changed terms. While last working at Respondent, Martin was attending evening classes at a community college of the area, and by early 1979 was still pursuing a random course of study. The uncontradicted facts of this case show a valid offer to have been made . The general context of Re- spondent's reinstatement program was not one in which manipulation, subterfuge, or recrimination were opera- tive factors in Cooksey's undertakings. Cf. Flite Chief, Inc., 258 NLRB 1124, 1126 (1981). Minor differences in shift time and days off, while distasteful to this particular individual, are not of such significance as to make the offer other than one sufficiently within meaning of the Board's Order. There has been no showing that Cook- sey's methodical program of reinstating strikers con- cealed any open positions which exactly matched what they had formerly done. It must also be remembered that at this point in time of early 1979 many union members were involved with interim employment , the potential for which was to have the same practical effect as though a full reinstatement offer of unarguable validity had been extended, where such interim employment in- volved a different or inconvenient work location, mark- edly different tasks, different wages and benefit patterns, and uncertain prospects of continuity. Notably, too, Martin did not express any inkling to Cooksey at the time about what is now obliquely raised as a pursuit of college studies which would be interfered with by the later starting time . In this regard Martin admitted the predictable fact that the institution at which he was in at- tendance offered a variety of morning courses as well as those he was accustomed to taking in the evening. Cf. Markle Mfg. Co., 239 NLRB 1142, 1148-1149 (1979). On this basis I determine that the General Counsel's claim on behalf of Martin is without merit, excepting only such backpay and accrued interest as is due him for the period of October 9, 1978, to January 23, 1979. 830 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 5. Bruce Anderson Anderson testified to being hired by Respondent in February 1964 in grocery receiving. By the time the strike commenced he had been in the frozen foods de- partment for about 3 years working a 6 a.m . to 2:30 p.m. shift with about 10 to 15 other employees. He had bid into this line of work and was high in seniority among his colleagues. Shortly after the strike ended Cooksey telephoned him at home with the offer of night-shift work. After considering this for a few days Anderson ac- cepted, and returned into the grocery shipping depart- ment as an order runner on production quota working until approximately 5:30 a .m. This was the type of work he had last done 5 or 6 years previously . He testified that in the past forklift assignments , to the extent they arose in such an operation, were distributed by supervisors ac- cording to seniority. After about 90 days in this position he was terminated in February 1979 for not precisely meeting the minimum 90-percent of production quota. His supervisor over that period of time had been Jim Brister, whom he had known for about 10 years as a co- worker at Respondent and with whom he was on gener- ally friendly terms . During this 90-day period Brister had counseled him concerning job requirements, and a writ- ten industrial vehicle operator test was scheduled which Anderson did not pass. In Respondent's defense to this claim Former Night Grocery supervisor James Brister credibly testified that he had sympathetically spoken with Anderson about how the latter's excessive talking while at work was hampering his ability to do a satisfactory job. Brister twice reprimanded Anderson in writing , unavailingly of- fered him a trainer to assist in improving his work, and in late January 1979 suspended him for 2-1/2 days in the course of progressive discipline preceding his actual ter- mination. John Lopez is Respondent's safety and training super- visor with responsibility for administering forklift opera- tor examinations both in regard to an obstacle course portion and the necessary written examination. Lopez testified that after operations returned to a normal phase following commencement of the strike there were no- tices posted informing employees that recertification would be necessary for forklift operators. Following An- derson's return to duty he failed the written portion of the examination. Lopez then personally notified him of the necessity of retaking this written portion , and ob- tained a confirming signature of Anderson to this effect on February 13, 1979. Lopez credibly recalled that while other employees routinely retook the written portion with success, Anderson never contacted him to make ar- rangements. I largely adopt Respondent 's contentions in the Ander- son case, believing that a position of genuine potential to contemporary earnings capacity and future transfer pros- pects had been made available to him . There is no indi- cation that a retaliatory motive touched Anderson, and the forklift test was a matter that had survived the claim of illegality in the underlying case as well as having been credibly shown to have fairly applied to Anderson upon his recall. This case is one of a willful failure to maintain suitable interim employment which constitutes a disquali- fication from backpay to the extent of such failed mitiga- tion. Cf. Carter's Rental, 250 NLRB 344, 347 (1980). On this basis I determine that he is entitled to no backpay for the period February 26, 1979, onward . I determine further that consistent with other cases his entitlement to an offer of reinstatement to the former position of em- ployment survives, and as to this Anderson retains pref- erential reinstatement rights with Respondent. 6. Gilbert Pena Pena testified that he was hired by Respondent in 1962, and for the approximate 10-year period prior to the strike worked in the freezer on day shift. The last 6 to 7 years of this period were as leadman, with a 10-cent hourly pay differential plus extra for freezer work. His duties involved arriving early for the shift and setting up paperwork preliminary to receipt of merchandise from independent suppliers. He checked incoming orders, signed necessary paperwork, and occasionally ran a fork- lift. After supporting the strike he received an early morning telephone call from Cooksey around April 1979 with the offer of a day job in warehouse receiving, cou- pled with the statement that it must be taken or termina- tion would result. Pena answered that whatever must be done would follow, knowing that his allergies would be aggravated by the hot, dusty conditions of the ware- house. Pena testified that Cooksey hung up on him with- out particularly listening to details of any response, and the next day a notice of termination arrived . At the time of the call from Cooksey, Pena was employed at Pacific Motor Trucking where he worked for about a year. In 1980 he became employed in dock work at Consolidated Freightways and remains with that company. Pena denied any further contact from Respondent after the Cooksey call and related letter. Respondent had no evidence to contradict Pena's gen- eral version of the facts, but contends that he has been exposed to dust and adverse weather conditions during his interim employment so that any excuse premised on his suffering from allergies should be discounted. It is also argued that his leadman position was supervisory in nature, and that interim employment in his case constitut- ed the aquisition of substantially equivalent employment in the statutory sense. I reject all Respondent defenses and uphold this claim in full. Pena's work in the freezer operation was unique and the offer of recall to grocery receiving, separate from circumstances under which it was made, did not fulfill the obligation of tendering a striker his former po- sition. The record fails to show that Pena's leadman ca- pacity ripened into that of a statutory supervisor, for here his testimony relegated any assignments or direction he might make, particularly in the regular supervisor's absence, to the level of mere routine and nonjudgmental efforts at more efficiently utilizing the services of co- workers already well qualified to their jobs. Respond- ent's final argument is unavailing, for as found in a com- parable instance above the dock work at both Pacific Motor Trucking and Consolidated Freightways is con- siderably dissimilar from the more specialized warehouse functions of this facility, and particularly so in Pena's ASSOCIATED GROCERS 831 case where he had paperwork responsibilities . On this basis I determine to confirm the General Counsel 's claim on behalf of Pena for reinstatement and running backpay with leadman differential. 7. Ronald Hager Hager testified that he was hired by Respondent in April 1972 for the grocery shipping department, per- forming trailer loading on night shift. After a short time he bid to the frozen and deli department of 25 to 30 other employees, and worked there as an order runner or linestocker on an afternoon shift . For the approximate 2- year period before start of the strike Hager was the only linestocker on his shift in the department , a position that involved filling shelves, rotating stock, and answering calls. Hager testified that around February 1979 Cooksey telephoned him at home in the evening offering work as an order runner in the grocery department with Wednes- days and Thursdays off. Hager answered that he wanted an exact return to duty on his former job with weekends off, and recalled Cooksey saying he must take the offer or be terminated . Hager denied being told on this occa- sion that he could subsequently move from that position, or that the telephone offer was one on a shift starting around 3 p.m. He has had no further contact from Re- spondent since that time. Hager has been employed on a midnight shift as a dock driver for Consolidated Freightways since October 1978 , a regular position of 40 hours work per week but more strenuous in nature than his last job with Respondent. Cooksey confirmed Hager's version of the telephone contact, and Respondent seemingly does not pursue this case other than arguing that substantially equivalent em- ployment had been acquired by reason of Hager's hiring in permanently with Consolidated Freightways in Octo- ber 1978. As to this he has performed dock work and trailer moving, while often experiencing shift changes from cutbacks . As with other claimants who ended up with this interim employer, I find that the working con- ditions and job benefits at Consolidated Freightways are dissimilar to those in effect with Respondent that the po- sition cannot successfully be labeled substantially equiva- lent in the statutory sense to the discrete job into which Hager had settled in Respondent's deli operation . On this basis I determine to confirm the General Counsel 's claim on behalf of Hager, insofar as it seeks fulfillment of his continuing entitlement to a valid offer of reinstatement. 8. Charles L. Fisher Fisher testified that he had been hired by Respondent in August 1969 for night work in the grocery shipping department. He continued in this work to the time of the strike, with his duties at the time being linestocker work- ing from 9 p.m. until needs of the operation were fin- ished the following morning. Fisher testified that Cook- sey telephoned him around early February 1979 , offering order runner work in his former department , except for a 1-hour difference in starting time and different days off. Fisher had an injured left hand at the time treated by stitches and a splint, which upon a medical release from such condition allowed a return to duty as an order runner on March 9, 1979. About 2 years after this rein- statement he resumed being a linestocker on the day shift and continues in this occupation. As to this reinstated employee this issue is to whether the order runner job was one of substantial equivalence in terms of his injury as it existed at the time . If so, his temporary disability would excuse Respondent from li- ability for the delay in reinstatement of several weeks. Fisher has persuasively established from his testimony that with order running there is a constant requirement of heavy lifting as would increase the likelihood of stitches pulling accidently from his injured hand. This risk was greatly lessened with ordinary tasks of the lines- tocker, primarily because the work involved handling product by forklift. It has not been sufficiently shown that Fisher unjustifiably delayed his return to work. On this basis I determine to confirm the General Counsel's backpay claim on his behalf. 9. Robert Ramey Ramey testified that he was hired by Respondent in August 1965 for shipping work in the grocery warehouse on a shift commencing at 4 a.m. By the time of the strike he was working in repack department on a Monday through Friday shift starting at 7 a.m., and primarily per- forming cigarette stamping , receiving, linestocking, and related duties in nonfoods with approximately 15 em- ployees working this shift. As time passed following the end of the strike Ramey heard rumors that his recall was imminent, but that he could not expect to last long on the job planned for him. Around July 1980 he received a job inquiry letter from Respondent, and on this basis conversed with Cooksey by telephone . He testified to asking to be returned to his former job, on which Cook- sey answered that Respondent's only obligation was as to starting time and days off and the current opening was on the day shift. Ramey informed Cooksey that he would not again work on the boxcars, as this was an entry type occupation which he had done years before when first starting with Respondent. He received a letter of termination soon after this conversation, and has had no contact from Respondent since that time . Cooksey's letter of July 16, 1980, alluded to a conversation of that date, in which Ramey stated he "would not be returning to Associated Grocers" because of satisfaction with a po- sition then held . Ramey had been on the Union's negoti- ating committee during 1978 , and in February 1979 was elected to a position as assistant business agent which he held for over a 3-year period. Following this he was un- employed for 6 months while looking for warehouse or truckdriving work, and eventually secured a salaried po- sition with Safeway as a night supervisor in its ware- house. In this case Respondent relies on the terms of Cook- sey's letter of July 16, 1980, in contending that Ramey turned down an appropriate job offer because of content- ment in his position with the Union that left him never thinking of a return to the old employment. The defect in this argument is that Ramey was never extended an offer of sufficient content that it could be evaluated for equivalence. Since Cooksey has not elaborated on the 832 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD telephone conversation of July 1980 , Ramey's recollec- tion must be accepted and from this it is seen that he was merely parrying whatever Cooksey may have been inti- mating as to work back at the facility but not in the former repack function. On this much of a record I cannot hold that a proper offer of reinstatement occurred , nor does the evidence show Ramey to have contributed in any way to his loss of employment with the Union. His occupational endeav- ors after that were mixed, with a period of unsuccessful job seeking followed by the regular position now held. If he is truly willing to return with Respondent this will be learned when an appropriate offer is actually made. On this basis I determine to confirm the General Counsel's claim on Ramey's behalf for reinstatement and running backpay. 10. Edward Calles Calles testified that he was hired by Respondent in December 1973 as an order runner in its grocery depart- ment on a shift beginning at 8 p .m. After about 3 months of this he bid into the frozen food department and worked there as an order runner for about 3 years. He moved from this to a position as working foreman on the dock loading operation, with the shift beginning at 3 p.m. and a 20-cent hourly differential paid to him. After about 1-1/2 years in that position he relinquished the working foreman capacity to transfer into a new food service department on a shift beginning at 6 p.m. worked by about three other employees. His duties there were order running and truck loading. Calles further testified that he supported the strike, and around March 1979 he was telephoned by Cooksey at his home with an offer of work in the grocery department on a shift starting at 1 p.m. By that time Calles was working at Tanner Company as a cement mixer truck- driver and attending school at night . Calles testified that upon explaining this Cooksey arbitrarily concluded that his explanation meant he intended to terminate and abruptly hung up the telephone as Calles was speaking in midsentence . Calles testified that he could have made ar- rangements to accept the offered position, and that he has no contact from Respondent since that time. This is a case in which Cooksey's testimony about the telephone conversation to Calles is so vague and incom- plete that I credit the latter with respect to what unfold- ed. Aside from the established infirmity in offering ware- house district employees specific positions other than those from which they went on strike, here the com- pounding factor is that credited evidence shows Calles was not even heard out on his reaction to the recall pros- pect. Thus even if a close analysis would make the order runner jobs of the grocery warehouse and the institution- al department comparable for reinstatement purposes, there has been no effective offer with respect to its me- chanics. Respondent has not shown that any schooling Calles had underway affected his potential for recall , nor that the position with Tanner Company had sufficient compa- rability of function and benefits so as to have been sub- stantially equivalent in terms of the Act. There was no guarantee of employment at Tanner nor the feature of sick leave with that employment . I reject Respondent's several defenses here, and on this basis determine to con- firm the General Counsel's claim on behalf of Calles for reinstatement and running backpay. 11. Arnold Babb Babb testified that he was hired by Respondent in April 1969 as a city pool driver, delivering groceries to members of the Associated Grocers cooperative . In Sep- tember 1970 he successfully bid to the Flagstaff, Arizona resident run, where two employees rotated as a team on 2-week cycles between runs to Phoenix for merchandise and customer deliveries in that area . At the time there were a total of six drivers at the Flagstaff resident loca- tion. In February 1971 Transportation Superintendent Gary Morgan asked Babb to take a similar resident posi- tion in Parker, Arizona. Babb did so and at that location rotated with one other employee on a system in which they alternated 2 weeks of night running to Phoenix for merchandise with 2 weeks of customer deliveries throughout the area. Babb testified that at the time of the strike he was recouperating from surgery of February 1978 and was released for return to duty in May. Babb testified that on November 19, 1979, Cooksey telephoned him early in the morning to offer a job in the city pool. Babb declined it at the time, and has had no contact from Respondent since then . He has observed that Respondent still makes deliveries to the former stops serviced out of the Parker resident location. His initial interim employment began February 19, 1979, as work of loading a cotton gin. He then hauled melons over the summer season, and had subsequent employment trans- porting the trucks of this operation back to a base in Stockton, California. Babb has been physically disabled from usual employment since June 1980 because of heart problems, and has been awarded Social Security disabil- ity. This claim is one in which credibility evaluation favors the General Counsel's witness. Cooksey testified that his call to Babb was made on December 19, 1978, but aside from this bare recollection he offered nothing to harmo- nize that day with operational events of the time. Babb was a witness of impressive demeanor, and fortified his persuasive testimony with a home calendar entry for No- vember 19, 1979, indicating that the call from Cooksey had not come until that date. However the evidence also shows that Respondent made significant adjustments to its outstate distribution patterns, and Cooksey has provided sufficient explanation for the change from 10-man-days per week to the lower level of only as reestablished for the Parker run in 1978. To the extent that there have been substantial flunctua- tions in number of units making delivery into the Parker (and Lake Havasu City/Blythe) vicinity, this is but an expectable business variation . On the total record it is es- tablished that a good-faith realignment of function oc- curred, and Babb's position was eliminated as of Decem- ber 1978. Cf. C. K Smith & Co., 227 NLRB 1061, 1075 (1977). By admitting the offer of a city driving position at that point in time, Respondent concedes that such po- sitions of substantial equivalence then were available in ASSOCIATED GROCERS 833 lieu of the job no longer in existence. It is reasonable to accord Babb backpay only from the October 9, 1978 start date to the point of December 19, 1978, when by Respondent's version at least a position would have been available to him provided a Phoenix relocation was agreeable. On this basis I determine to confirm the Gen- eral Counsel's claim on behalf of Babb, but only to the extent of a backpay period that ends December 19, 1978, and with accumulated interest thereon. 12. William Malone Malone testified that after an initial 2-year stint with Respondent he was rehired in 1973 as a truck mechanic. By the time of the strike he was a working foreman in this function on night shift under Supervisor Frank Wood. In January 1979 he was telephoned by Cooksey at his home with the offer of a mechanic's job on day shift. Malone answered that this was not equal to his former position, but he would like to check with the Union. Upon doing so he recontacted Cooksey saying he would decline because comparable work was not being offered, and Cooksey advised this would lead to his ter- mination. By letter dated January 15, 1979, Cooksey con- firmed this action, alluding in the process to Malone's ad- mitted initial statement that he would promptly return to work on the terms offered. Malone has had no contact from Respondent since that time . He had obtained work at A. M. Lewis Company in January 1979 as a truck me- chanic, and soon thereafter transferred to a similar ca- pacity at Milne Truck Lines. Malone is aware that his in- terim earnings have exceeded gross backpay, but affirma- tively testified that he desires reinstatement to his former position as a working foreman with Respondent. Cooksey testified that he conversed by telephone with Malone on January 15, 1979, and after offering him the open mechanic job heard Malone decline because of wanting to continue in his position at A. M . Lewis Com- pany in particular terms of his pension status . Cooksey was familiar at the time with the pay and benefit package A. M. Lewis Company had for its employees, and be- lieved from this that by holding a mechanic's position with that employer Malone was very similarly situated to what he would have been with Respondent. Respondent's defense here is rejected for two reasons. In this instance I credit Malone respecting the telephone conversation of January 1979, for his testimony is nota- bly convincing as a matter of demeanor and seeming ability for accurate recall . I thus find that he did not ex- press a disinterest in returning to work for Respondent, and although tacitly agreeing to do so had also stated that he would inquire of the Union about the offer. From this Respondent's contention that Malone had abandoned his claim for reinstatement is unavailing. Moreover the job offered to him was not his former position within meaning of the Board's Order, for it lacked the feature of again being a working foreman and it did not indicate that an appropriate pay rate would attach . On this basis I determine to confirm the General Counsel 's claim on behalf of Malone, insofar as it seeks fulfillment of his continuing entitlement to a valid offer of reinstatement. 13. William Eshenbaugh Eshenbaugh testified that he was hired by Respondent in September 1968 as a night -shift loader in the grocery shipping department. After approximately 5 years he transferred to frozen foods deli department on a day shift with weekends off. By the time of the strike he was rela- tively low in seniority among the 10 to 12 employees of the shift, and was carpooling to work with Zeck Raney. Eshenbaugh performed a variety of duties in this depart- ment, including receiving merchandise by forklift, lines- tocking by forklift, running shorts, working damaged merchandise, setting up new items and operating "Bar- rett" and "Raymond" machines. About 2 to 3 months after the strike started he conversed with Cooksey, but nothing materialized at the time. In April 1981 he was offered a linestocking job on day shift in the grocery re- ceiving department by Cooksey, but he responded to this by saying he preferred his old job. Eshenbaugh recalled being told he did not have this option, nor the opportuni- ty to talk about the prospect with the Union. Following this he received a letter stating his employment with Re- spondent was terminated. His only previous experience in grocery receiving was during a 3-month period sever- al years before, and Eshenbaugh testified that he de- clined the offer because the job would not be equivalent in terms of conditions, the monotony of its tasks, and that he could no longer carpool. Eshenbaugh obtained interim employment at Conrock of Arizona's predecessor in September 1978 and has continued at that enterprise. Eshenbaugh's interim employment history was detailed by Donald Grundy, Conrock's treasurer and assistant secretary . This firm had taken over operations of Arizo- na Sand & Rock on September 1, 1983, and continued the employee complement of that time . An employment application of Eshenbaugh's showed that he had reported employment at Arizona Sand & Rock from September 1978 onward as a mechanic on an initial hourly wage of $11.27. Grundy testified that Conrock maintains a labor contract with Teamsters Local 83, having pension, health and welfare, vacation and holiday features, but not sick leave benefits. Consistent with the settled doctrine as applied to vari- ous claims above, I find that the April 1981 job offer to Eshenbaugh was not that of his former position nor legi- timatized because such did not exist. As Respondent's contention that he had achieved substantially equivalent employment with Arizona Sand & Rock , I cannot agree that such was the case when the respective occupations are compared. The work as a mechanic was tangibly dis- similar and more physically demanding as a matter of regular tasks, while it also existed on an afternoon shift as contrasted with days as Eshenbaugh had been so working for several years. Respondent characterized his 1982 layoff from this interim employment as "brief," yet this is hardly a fair statement when a duration of 11-1/2 months is viewed . Eshenbaugh is not shown to have ever experienced a layoff from Respondent, and that employ- ment also carried a well-structured sick leave program. Overall, the interim employment was clearly not of sub- stantial equivalence as to extinguish his employee status in 1978 or at any later date. On this basis I determine to 834 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD confirm the General Counsel's claim on behalf of Eshen- baugh for reinstatement and running backpay. 14. Henry Dial This is the first individual treatment of the group claims that survive following denial of Respondent's motion to strike as resolved in section II ,b, above. Dial testified that he was hired by Respondent in 1972 and worked exclusively thereafter in the salvage department on the afternoon shift. This work entailed the handling and restocking of damaged or returned merchandise. He unloaded trailers in which salvage items were brought back to the facility , using a forklift if palletized merchan- dise was already in place . Absent this he manually picked up scattered items and stacked these on pallets before removing them from the trucks for eventual re- loading. Dial recalled that after the strike was over he was tele- phoned by Cooksey early in a morning during March 1979. Cooksey's offer was that of a night shipping job, to which Dial asked for something in salvage . Cooksey took this as a refusal and said that Dial would be termi- nated, which was confirmed in a letter he received a few days later. Dial testified that his reason for declining in grocery shipping was because at age 59 he doubted he would be able to keep up with production quotas of the system he knew to be in effect . He had obtained work at Fry's in the salvage department in December 1978, where the established hourly rate was about $2 less than for his comparable work at Respondent. Dial retired in January 1982. Dial's refusal to accept the physically arduous job of order running in the grocery warehouse, populated as it was by younger, more vigorous workers, was not dis- qualifying. Cf. Central Cartage, 236 NLRB 1232 (1978). This is but another instance of how Respondent has failed to meet its obligation under the principle that an effective offer of reinstatement in this situation must or- dinarily be to the individual's particular former position, as to which no evidence was presented here that tradi- tional salvage work did not continue to exist as of March 1979. On this basis I determine to confirm the General Counsel's claim on behalf of Dial for backpay in excess of which he has already received. 15. Gary Clark Clark testified that he was hired by Respondent in June 1976 for night-shift work in the produce shipping department, in which his tasks were running orders and loading trucks. He remained in this employment at the time of the strike with an address of record on North Biltmore Drive, Phoenix, where he at times actually re- sided during this employment . Clark went on strike and then in June 1978 relocated to Lakeside, Arizona, to live with his parents who had P.O. Box 731 there for mailing purposes. This had been Clark's own prior address, and the post office box number is what he had entered on his employment application. Clark testified that he filed a postal change of address in connection with this move to Lakeside. He then commenced working for his father's trucking company in Lakeside until quitting in 1983 to be at home with his pregnant wife. By letter dated May 29, 1979, Respondent had offered Clark a position in the grocery warehouse with the option of waiting for his old job should he decline. The letter provided a week in which to respond, and ulti- mately was delivered to Clark at Lakeside as a forward- ed item of mail. Clark testified that he had no desire to work in an area other than produce, but upon receiving this letter he telephoned Respondent's personnel office and gave his new Lakeside address . He has had no con- tact with Respondent since, except for his own recent in- quiry concerning the possibility of being rehired. W. D. Clark testified that he is the father of Gary Clark and five other sons, and that he started a trucking company in July 1978 by purchasing a tractor and leas- ing it to the Roadrunner Company of Albuquerque, New Mexico. He operated out of his home in Lakeside, Arizo- na, and initially employed an older son, Mike, as driver with Gary riding in a student role. After Mike quit in November 1978 the driver's compensation was directed to Gary, and then in March 1981 W. D. Clark began paying Gary's wages directly on a mileage basis that ranged from 15 cents per mile to a high of 19 cents. After Gary married Shelly in February 1983 she began riding with him to learn the role of a driver. Ultimately the two became a driving team covering much of the western United States, for which they shared driver's compensation on a mileage basis . W. D. Clark had item- ized earnings from his trucking company records which showed the breakdown on a quarterly basis of earnings and respectively to Gary and to Shelly. Cooksey testified that as he had done with Dawa, the May 29, 1979 letter was an inquiry to Clark about early return to work with Respondent should he choose to do so in the grocery warehouse while awaiting transfer to his old department. Cooksey had taken the address for the letter from personnel files, and a certified mail re- ceipt was returned to him showing delivery of the letter to Clark. When a position in produce became available about a year later, Cooksey attempted telephone contact to Clark, and when this failed he wrote a letter dated April 2, 1980, addressed as had been done before to the North Biltmore Drive address, which confirmed the offer of reinstatement and provided a week 's period to make contact. By its terms, this letter also constituted a record of termination should timely contact not be made. This letter was returned as undeliverable, and there was no further contact until early 1984. Cooksey noted that because of this an arrangement was made to rehire Clark effective March 25, 1984. On this issue Respondent contends that Clark failed to reasonably maintain his correct address on file, and in any case evinced an intent to abandon employment at Respondent and associate with his father's business. The General Counsel argues that pay, benefits , and prospects for job stability were so dissimilar at the Clark Trucking operation that it could not be considered substantially equivalent to Clark's former work in Respondent's produce warehouse. Additionally, he never acquired any ownership role in the business at which he admittedly ASSOCIATED GROCERS 835 achieved, for certain calendar quarters and particularly in 1982, high interim earnings . The General Counsel also introduces the notion that Respondent should have uti- lized records of the employee credit union to supplement its files on Clark's whereabouts. I reject the General Counsel's theory that this employ- er should have turned to the credit union which bears its name as part of any steps necessary to reasonably at- tempt contact with former strikers. Cooksey credibly and predictably testified that there is no business connection between Respondent and the credit union serving its em- ployees, and that aside from a trailer originally operated for convenience at the facility in 1978 the credit union's office has been physically housed several miles away. This novel assertion has some logic to it, but as a practi- cal matter I see no reason to saddle an employer with the obligation to reach out to an entity with which it has no real bond, on the problematical grounds that a more current address for an individual may be found . This is excessively burdensome, and could well lead to compli- cations in terms of both the credit union 's disclosure of information and the individual's desire for its release. Cf. Bodolay Packaging Machinery, 271 NLRB 10 (1984). The subject is one in which the countervailing responsibility of an individual having any semblance of intent at recall to an employer from which he has been separated from active employment for an appreciable period of time should be held to be the simple duty of seeing that an ordinary act of notification be done. In Clark's case I discredit his claim of having made such notification . His description of the alleged tele- phone call was vague, unpersuasive, and testified to in a manner that leaves me totally in doubt that such was the truth. More importantly, his version is intrinsically un- worthy because he claimed to have made contact to the personnel office "sometime in '78 ," but the letter sup- posedly triggering such contact did not even materialize until months later. Notwithstanding that Clark may have given the credit union office an address change, and re- ceived poststrike account statements from them at the re- sumed Lakeside address, this is without consequence to Respondent's liability which is avoided whenever their efforts have been reasonable in such a phase of reinstate- ment procedures . At the time of sending the second letter Cooksey had no reason to address it in any fashion other than as he did, and with its terms complete and ap- propriate to the reinstatement obligation as it would run to Clark its termination of this employee was validly done. I take judicial notice of the everyday fact that the United States Postal Service honors an indivlidual's formal, written change of address order only for a 1-year period from the time it is filed . The informative language on the point reads: THIS ORDER PROVIDES for the forwarding of First-Class Mail and all parcels of obvious value for a period not to exceed 1 year. (PS Form 3575, Sep. 1981.) Clark was the cause of his own misfortune by failing to follow through with the self-evident need to inform Respondent in mid-1979 that his current address was no longer in Phoenix. See Burnup & Sims, Inc., 256 NLRB 965 (1981). On this basis I determine that the General Counsel's claim on behalf of Clark is without merit, ex- cepting only the extent to which it is calculated for a period prior to the admitted backpay tolling date of April 2, 1980. In view of the certainty of grounds upon which Clark's excess backpay claim is rejected, I do not treat matters of interim earnings as stemming from the testimony of W. D. Clark. 16. Ronald Goff Goff testified that by the time of the strike he had worked for 3 years with Respondent as a garage service- man on the midnight shift, maintaining truck engines, fueling refrigeration units, and hooking up rigs. At some point after the strike, the date of which Goff is unable to fix, he recalled being telephoned by Cooksey who of- fered reinstatement to a comparable day-shift job. Goff declined this because the Union was not back with full recognitional rights and he wanted representation should he return to work. At the time Goff was employed at Thunderbird Freight on a higher paying job , and later he obtained employment at General GMC. Cooksey placed the call to Goff as being on Novem- ber 8, 1978, and in it Goff termed his disinterest in re- turning as because a labor dispute was still in progress. The confirming letter sent by Cooksey referred to this as Goss' stated reason for declining the serviceman position offer, and by its terms constituted a record of termina- tion from employment. This is a case dismissible out of hand. Respondent's job offer was fully within terms of the Board's Order, par- ticularly where Goff testified to a preference for the pro- posed shift time. While the letter as dated on January 14, 1979, does not coincide with Cooksey's recollection of the contact having been 2 months earlier, there is no var- iation in the essence of what was said . Goff made a plain declination of recall to employment for reasons that, while important to him , were without significance inso- far as his statutory rights were concerned . Numerous other individuals were returning at this general point in time, and there was never a repudiation of the Union's collective-bargaining status, only that a noncontract period was in effect. On this basis I determine that the General Counsel's claim on behalf of Goff is without merit, excepting only backpay and accrued interest cal- culated to January 14, 1979. 17. Ray Chase Chase testified that he was hired by Respondent in May 1961 and performed a variety of warehouse jobs over the years. At the time of the strike he was in the repack department, doing linestocking of health and beauty aid products. After the strike concluded he was offered a job in the grocery warehouse by Cooksey in November 1978, structured as Sundays through Thurs- days on the night shift. Chase declined this and was called again by Cooksey in March 1979 at his Kearny, Arizona residence with the offer of a day-shift job in grocery receiving. Chase testified that this second offer on the day shift did not specify a particular job assign- 836 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ment, and that he was 56 years old at the time. Chase recalled telling Cooksey that the offer put him in a bind in terms of notice to another employer , but he was cut off from saying more by Cooksey 's statement that Re- spondent would clear its files by sending him a notice of termination. Chase's interim employment had begun in August 1978 at Kearny, and involved work as a truck- driver at Kennecott Copper Corporation lasting until permanent layoff in May 1982. Chase had sold his Phoe- nix home in connection with taking this employment and relocated to Kearny where he bought another house. Cooksey testified that after reaching Chase by tele- phone at Kearny to make the day-shift offer of grocery receiving work, the employee advised that he would not be returning because of the job he then held. Cooksey also described typical grocery receiving work as half re- quiring use of slip-sheet forks for machine movement into the warehouse, with another portion removed by forklift from trucks or boxcars and the balance by hand. I do not agree with all aspects of Respondent's de- fenses to this case. While Chase used a forklift fulfilling his duties in the repack department, the quantities were small and the items relatively light . This was dissimilar to the miscellaneous run of merchandise that would arrive in the general receiving function, and concededly an amount of manual handling, much of which could be arduous, was involved in the regular flow. For this reason I do not find that the two positions were equiva- lent, however, the record does not establish that Chase was confronted with this specific prospect of regularly working the general grocery receiving function. His position at Kennecott Copper had characteristics of substantial equivalence in terms of a better pay rate as an offset to lower entering benefits, union representation, and, although in a different industry , was a truckdriving job that Chase found easier than the work he had done with Respondent. More importantly, I discredit his at- tempted refinement at nuances of the March 1979 tele- phone conversation with Cooksey, finding instead that an affidavit he gave in March 1983 more accurately re- flects what he said about being in a bind because of his geographic relocation . This version brings the conversa- tion more in harmony with the extent of Cooksey's cred- ible recollection on the point, and shows that Chase ef- fectively declined recall to employment with Respondent because he was suitably relocated and without any objec- tive intention of return to the Phoenix labor market area. This voluntary removal from consideration serves as a bar to any further backpay beyond the amount now paid in discharge of Respondent 's obligation from the general start date to March 19 , 1979. On this basis I determine that the General Counsel's claim on behalf of Chase for additional backpay beyond what he has already received, with interest, is without merit. 18. Norbert Jacobi Jacobi testified that he was hired by Respondent in 1971 for midnight shift work in the grocery shipping de- partment. He later bid into repack, and had been there for about 5 years prior to the strike. His shift in repack was 1:30 to 11 p.m., and duties there involved order se- lection, forklift work, and linestocking. His only rein- statement contact from Cooksey occurred on February 23, 1979, via an early morning phone call . Jacobi testified that Cooksey's offer was of third-shift work starting ap- proximately 9:30 p .m. in an unspecified major function of the grocery department. The particular opening was one with Wednesdays and Thursdays as scheduled days off. Jacobi resisted the offer, saying it was not his former de- partment, shift, or days off. He recalled Cooksey then asking if this meant that Jacobi was quitting , and Jacobi denied that as the effect of his persistence . Jacobi testi- fied further that Cooksey nevertheless said it was impos- sible to accommodate him and this would mean termina- tion. To this, Jacobi repeated his statement that his posi- tion on the offer did not constitute a quit . He soon re- ceived a letter from Cooksey dated February 23 in which it was recited that Jacobi had wanted his former department and work shift in terms of recall , and since Respondent considered the offer of night-shift work to be adequate he was terminated from employment. Respondent contends that Jacobi was engaged in desir- able, more higher paying work at Fry's when the tele- phone contact occurred , and from this circumstance it should be inferred that no real intention to ever return was present. Additionally, Respondent points to evidence showing that Jacobi was subject to a production quota in his employment at Fry's, and that during job changes there he had worked a third shift of an 8:30 p .m. starting time for 1 to 2 years. In this case, the controlling notion is that Cooksey's offer of February 23, 1979, was not to Jacobi's former position of employment as required under the Board's Order. As seen with other repack employees , and as ef- fectively described in Jacobi 's forthright testimony, as- signment to this department meant the handling of small- er, lighter products on a team basis involving less job pressure and freedom from a quota requirement. The dis- tinction in job content as well as the pronounced differ- ence in one's workday starting at 1:30 p.m. as opposed to 9:30 p.m. leaves clear reason to say that the offer was in- effectual. Further, Jacobi gave Cooksey no reason to conclude that he was relinquishing recall rights with Re- spondent, and the circumstances of his interim employ- ment then underway did not support such a belief. On this basis I determine to confirm the General Counsel's claim on behalf of Jacobi for reinstatement and running backpay. 19. Ronnie Cook Cook testified that he was hired by Respondent in 1961 as a night-shift order runner in the repack depart- ment. By the time of the strike and for 12 years prior thereto, he had been a leadman receiving clerk for in- coming nonfood merchandise handled in the repack de- partment. Cook described his job as devoid of physical work with mostly paperwork duties of checking inbound freight as to bills of lading and purchase orders, and con- verting the products to computer records for selling units. He was on a day shift which began at 6 a .m. in the fall of 1978 he had a recall offer from Cooksey to night- shift grocery order running which he passed. Then around March 1979, Cooksey telephoned again, this time ASSOCIATED GROCERS with an offer back to day-shift work in the grocery de- partment. Cook recalled questioning about what the job would be, and from the information provided stating that he would only want his old job and the enhanced pay scale of a 10-cent-per-hour leadman differential. On this basis, Cooksey advised that he would be terminated from employment. Respondent contends that the job offer of early 1979 to Cook was functionally identical to his former position, and that Cook's response was tantamount to a declina- tion because of then holding a better paying job which he intended to keep following successful completion of a mere 30-day probationary period . This interim employ- ment at Consolidated Freightways was also shown to have been dock unloading of freight by forklifts largely similar in function to what Cooksey had offered in the second contact. Respondent also elicited that Cook was wary of returning to Respondent without a union con- tract in effect, although the witness maintained that he would under any circumstances have come back to his old job. I reject Respondent's argument that a valid offer has been made to Cook, because it envisioned work too dis- similar to his former position as a nonfoods receiver and, equally important, did not recognize the leadman pay differential to which he was entitled as a long-settled part of his former employment package. Cook's work at Consolidated Freightways, while remunerative, had ir- regular characteristics. It necessitated long days in conse- quence of meaning that it was not substantially equiva- lent to what he had held before, even upon discounting Cook'a inaccurate characterization of having previously been required to perform no physical exertion on his job. His questioning of Cooksey, and stated preference during the March 1979 telephone conversation about how he would prefer to return, did not constitute a quitting from employment . On this basis I determined to confirm the General Counsel's claim on behalf of Cook for reinstate- ment and running backpay. 20. James Ashline Ashline testified that he was hired by Respondent in 1971 and worked about 7 years as an order runner and truckloader on night shift in the warehouse. In late 1977, he became one of a small group of employees that start- ed up the new deli institutional department on a shift that commenced at 4 p .m. Ashline described his work there as handling lighter food products to supply restau- rants, in an operation of more desirable working condi- tions than the dry grocery department. His recollection of a sole contact from Respondent following the end of the strike was that in late 1979 Cooksey telephoned with the offer of a night-shift job running orders with Thurs- days and Fridays off. Ashline testified that to this he asked for his old job back, but was told by Cooksey that he would be terminated for not accepting the offer. Ash- line has had no contact from Respondent since that time. As a preliminary matter, I note little reason to accord credence to Ashline's rather poor recollection of events. He could not recall the name of Christman although working for 6 months with the individual in a newly structured department and he placed the telephone con- 837 tact from Cooksey improbably as "late" in 1979 when he was actually working at Northwest Transport. Cooksey more credibly recalled that Ashline had mentioned Con- solidated Freightways as his interim employer at the time, and he was further inconsistent in setting forth whether or not medical coverage benefits attached to his salaried position as a dock supervisor at Northwest Transport. The first issue here relates to the validity of offering Ashline grocery shipping work when his former position was in deli institutional, a job admittedly lighter in nature. As to this, Ashline is situated similarly to Calles and Christman as a person whose entitlement to a reinstatement offer to their former position of employ- ment was not fulfilled. However, it is also seen from the record as a whole that by April 1979 Ashline had acquired a valuable posi- tion, one of enhanced earnings potential and union repre- sentation under the master freight agreement of that area. While functionally different , these other factors in his case, coupled with his accession to a salaried position with that company , constituted the Northwest Transport employment as substantially equivalent to what he had formerly held with Respondent . On this basis I deter- mine that the General Counsel 's claim on behalf of Ash- line is without merit, to the extent that an offer of rein- statement is currently sought and backpay claimed beyond amounts previously paid to him. 21. J. W. Seymour Seymour testified that he was employed by a prede- cesssor firm that became the Baird Bakery Division of Respondent. He had earlier been a bread deliverer pull- ing a semitrailer on a midnight shift to points south of Phoenix. By the time of the strike he was making local city deliveries of bread with the same type of equipment, a job to which he switched at his request because of family care needs at his Phoenix home. This job was paid on hourly rate . Seymour recalled that on or around April 10, 1979, he was telephoned by Baird Division Sales Manager John Thompson, and offered a day job located at Camp Verde, Arizona , about 80 miles north of Phoenix. Seymour declined this because of his child care responsibilities and to attend property owned locally. Thompson telephoned again about May 12, 1979, with another day-shift job offer in Phoenix . This would have involved delivering bread from small trucks and shelving it at the customer, a line of work which Seymour under- stood at the time to be paid on commission. He also de- clined this second offer, telling Thompson that he could not work days because of being a single parent who had to care for school age children . Following this, Seymour was terminated from employment and has had no con- tact from Respondent since that time. Thompson testified that he had worked 14 years for the Baird Company until 1971 and returned to the oper- ation as a sales supervisor in 1977, at which point it had become a division of Respondent. By early 1978, he was general sales manager in charge of drivers delivering bread from the bakery to stores and various other cus- tomers. The vehicle fleet included semis and eight step vans, with specialty runs outside the metropolitan Phoe- 838 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD nix area. Semi drivers were paid 10 cents more per hour than for operating step vans, however, a van driver for- mally qualified to operate a semi received the differential when actually assigned for vacation or other fill-in pur- poses to such work. Thompson found upon his return that Baird's prior practices of shelving bread as part of the delivery process and paying van drivers on a com- mission basis had both been discontinued . As of 1978 the smaller trucks also dropped products at the customer premises as done by the semis , and both classifications of drivers were on hourly rate . Thompson depicted the uti- lization of drivers in terms of type of equipment used and hours worked as subject to seasonal fluctuation, vari- ous types of absence by other drivers which required coverage, and the unpredictable needs of specialty cus- tomers such as schools and colleges. When the strike ended, Thompson was placed in charge of recalling Baird drivers. After coordinating the responsibility with Cooksey, he used a seniority list to contact individuals as openings occurred. In this process he made telephone calls to Seymour in April 1979 and again in May, offering him the Camp Verde run and step van delivery in Phoenix, respectively. Thompson placed starting time for the second offered job as from 2 to 4 a.m., the variation being based on an evaluation of time required for the particular day's load. He recalled Sey- mour answering that the route would leave him prob- lems with his children, and that he finally expressed dis- interest. There are two preliminary matters for discussion. As with much of his testimony, Seymour was vague or inac- curate in recalling that his "starting times" upon his truck being loaded was 10:30 or 11 p.m., whereas the time records show almost universally that he began at 12:30 a.m. and did not finish of until 9 a.m. To the extent that Seymour had child care responsibilities, there is no ordinary pattern of school attendance which would permit him the opportunity to prepare his children for morning departure regardless of whether he worked only to 9 a.m. or a time several hours later. On a second point Respondent contends that Seymour was motivated to de- cline recall because of demands generated by his owner- ship of rental properties. However, that is a collateral matter not shown to have been absent prior to Sey- mour's status as a discriminatee and, more importantly, from Thompson's more credible version of telephone contact between the two individuals not even mentioned by Seymour when mulling over the second offer. The key issue in Seymour's case is the validity of Thompson's telephoned job offer as made on May 12, 1979, and here the essential question is whether that was his former position or, if necessary from circumstances, the equivalent. It is evident that the Baird drivers did not have the structured setup of the warehouse employees, and even though much regularity of assignment was practiced this was subject to complete and sudden change. The particular runs were not open to a bidding procedure and Thompson credibly recalled that no driver had ever considered a job change to have been imposed against his will. Significantly, Thompson also credibly established that Seymour's switch from outstate to city semitruck driving was not a matter of personal accommodation , but instead arose because a key custom- er changed its distribution practices of the past. I see from this total configuration an operation in which such sufficient flexibility continued to repose with the employ- er that an offer of delivery work within the division, at the same general time of day and in the individual's former geographical area, coupled with a continuation of the entitlement to hourly paid differential if semi driving work was to be involved, was tantamount to an offer of a former position to Seymour in this branch of Respond- ent's business. While it is true that semi drivers Crowsen and Manning typically had midevening' starting times of 8 to 9 p.m., semidriver Leo Ockenfels started at the same general time yet worked most days until 8 a.m. or later, while semidriver George Ottinger, more notably, usually started just before 2 a.m. and during his illustrative work spans as taken from company records did not finish until 9 a.m. or later nearly half the time. Seymour was out of touch as to current operating practices at the division, and erroneously assumed city deliverers by van were still on a commission basis. The fact of the matter was other- wise, and overall there is insufficient basis from the record as a whole to say that Thompson's second offer failed to satisfy the Board's Order as to this case. On this basis I determine that the General Counsel's claim on behalf of Seymour is without merit, to the extent that an offer of reinstatement is currently sought and backpay claimed subsequent to May 12, 1979. 22. James Byrd Byrd testified that he worked for Baird Division or its predecessor since 1973 and prior to the strike was em- ployed on a bread delivery route south of metropolitan Phoenix, which commenced at 1 a.m. and finished at ap- proximately 9 a.m. During the course of the strike he had obtained dock work at Pacific Motor Trucking, and by October 1978 was full time with that company on an hourly rate in excess of $9. This employment ended in layoff during 1980 and Byrd has since relocated to Colo- rado. He recalled a telephone job offer from Thompson in 1979 of the Camp Verde run which he declined. Byrd denied having any further contact from Respondent other than receipt by his wife or a certified mail letter dated May 14, 1979, alluding, among other things, to a contact on May 12, 1979, regarding "employment in .. . the local Phoenix area." The letter recited that as with an earlier offer in April Byrd had refused on the basis that it was not in his best interests to return. By its fur- ther terms, this letter constituted a termination of Byrd from employment with Respondent. Byrd denied having received this second telephone contact. Here Thompson associates Seymour and Byrd, recall- ing them in immediate seniority order for reinstatement and that he followed his calls to Seymour with similar job offers to Byrd . From this, Thompson credibly de- scribed the first contact in April as that of offering the Camp Verde work, and when Byrd declined he was told to expect another contact when a Phoenix opening arose. Thompson placed his next call to Byrd in May 1979, and that it would have been a delivery route offer in Phoenix using a small truck starting at 2 to 4 a.m. After some dis- ASSOCIATED GROCERS cussion, Thompson recalled Byrd saying that he liked making more money instead with the company at which he was then employed. With this as the upshot, Thomp- son sent the termination letter described above. I specifically credit Thompson over Byrd on demean- or grounds, the former projecting generally persuasive testimony and the latter appearing uncertain and disinter- ested in accurate recall of facts. For this reason, I find that the second job offer as described by Thompson was communicated to Byrd, and for reasons set forth in dis- cussion of Seymour's case above consider it to have been a valid offer within terms of the Board's Order as appli- cable to him. On the plane of the equivalency, I am in- fluenced by the fact that van drivers Gerald Biller and Robert Wallen often started work at around 2 a.m., while the usual starting time of van driver Robert Stair was midnight or later. On this basis I determine that the General Counsel's claim on behalf of Byrd is without merit, to the extent that an offer of reinstatement is cur- rently sought and backpay claimed subsequent to May 12, 1979. 23. James Wood This individual is a discriminatee who was unlocatable until the time of the trial, at which point he was discov- ered in Canada. His backpay period commences October 9, 1978, and General Counsel's Exhibit 45 is a document summarizing calendar quarter computations under which Respondent's admitted liability running to 1979-1981 is $2,350. 16 while the General Counsel claims $15,938.13 to 1980-1982 at which point, concededly on May 26, 1980, Wood expressed a binding intent not to return . Wood's prestrike work station was the grocery repack shipping department. Cooksey attempted to reach Wood in early March 1979 and upon finding he had no telephone wrote a letter dated March 8, 1979, for which Wood signed a certified mail postal receipt on March 9. This letter ad- vised that work was available in "the grocery shipping area," and Wood had until 10 a .m. on Monday, March 12, 1979, to make contact with Cooksey at a stated tele- phone number. The letter ended with a typical conclu- sion to such correspondence of that era that absent such contact, a termination from employment would be re- corded for the addressee. What exactly transpired following this is intricate to extract from Cooksey's testimony on the point. The Gen- eral Counsel contends that Wood was treated similar to numerous other discriminatees to whom invalid offers were made in terms of their former functional areas of work. The General Counsel further intimates that Wood responded to the letter before March 12, 1979, and con- versed with Cooksey along the only known lines, those of Cooksey's own testimony in which he recalled how Wood stated that he wanted to return to his former job in general merchandise even though Cooksey encour- aged him to accept the opening and exercise his transfer seniority at a future time. However, the predominance of the evidence is that the conversation occurred after March 12, 1979, and after Cooksey had informally re- corded Wood as a "quit" on his file copy of the letter and then generated termination paperwork through Re- 839 spondent's payroll and personnel offices . In his first ex- planation on the point, Cooksey said expressly that Wood had not responded by the deadline given (Tr. 138). When questioned again on the sequence , Cooksey fixed March 15, 1979, as the date of the conversation, and reiterated this date when cross-examined more per- sistently on the episode (Tr. 2889-2890). While some am- biguity preceded this testimony in terms of the phraseol- ogy "time frame" of the correspondence, the more con- vincing proof is that the deadline had clearly passed before Wood made his belated response . This I find to be a satisfaction of Respondent's burden of proof in show- ing adequacy of its offer of reinstatement to Wood, and the General Counsel has not sufficiently rebutted such proof on this narrow issue of fact . As to the content of the offer, it was one Cooksey described as the general grocery shipping area; however, this does not establish that Wood himself necessarily considered that unaccept- able at a point in time prior to the deadline being reached. In fact others such as Fernandez and Anderson had accepted just such offers, and but for the particular issues arising in their cases would not have been within this supplementary litigation. The Board does not attempt to prescribe what is a rea- sonable time in which to consider whether to return to work upon receipt of an offer of reinstatement . Michael M. Schaefer, 246 NLRB 181 (1979); Penco Enterprises, 216 NLRB 734 (1975). Cf. Southland Knitwear, 260 NLRB 642, 655 (1982); Woodland Supermarket, 240 NLRB 295 (1979); Seminole Asphalt Refining, 225 NLRB 1202 (1976). Further, it has authoritatively been held that an individual's failure to complain of a time limitation precludes the argument of reasonableness of reporting time, and permits a good-faith offer to be construed as satisfying an employer's obligation to extend reinstate- ment rights. NLRB v. Betts Baking Co., 428 F.2d 156 (10th Cir. 1970). In Wood's case, there is nothing to un- dermine the presumptively bona fide nature of the offer made to him, and under the only known version of his contact to Cooksey there is no indication he complained of insufficient time in which to give it consideration. Thus the amount of time extended to Wood , and the time period actually available to him, were reasonably adapted to the overall recall program and his own enti- tlements. On this basis I determine that the General Counsel's claim on behalf of Wood is without merit, to the extent of backpay beyond that amount admittedly due. H. Working Foremen and Leadmen There is a class of individuals who were either work- ing foremen or leadmen at the time the strike com- menced, earning an hourly premium of 20 cents or 10 cents, respectively, as to whom the parties have stipulat- ed the issue. The General Counsel contends that the in- trinsic failure to restore the added indicia of such a per- son's former occupation, including primarily the extra pay that attaches for the special responsibilities beyond others of the bargaining unit, makes reinstatement of such persons as has otherwise been achieved legally in- sufficient. Further, the General Counsel points to unre- 840 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD butted testimony given by Fernandez, Gabriel Molnar, and Koehn to the effect that Grocery Department Su- perintendent John Roberts had separately stated to each of them that former working foremen would never be re- stored to this full capacity as an implied or express deter- mination of Respondent's top management. Respondent contends that none of the individuals involved are enti- tled to this additional aspect of a reinstatement offer be- cause of a management-rights article of the past collec- tive-bargaining agreement in which direction if the work force is defined as a discretionary function of the em- ployer alone. Respondent argues from this that the "zipper" clause of that same agreement suffices to show that the Union had not in the course of bargaining re- moved the discretionary assignment of persons to such recognizably special positions from the employer's au- thority. The essence of this contention, and my prelimi= nary treatment of it, is found in section C,2,D, above, where the Dennis Falls' claim is discussed. Taking into account the General Counsel 's series of amended pleadings, and more helpfully a stipulation of record (Tr. 960-961), the persons involved solely in this issue are Billy Bob Lyster, John Matzinger , Gabriel Molnar, James Veach, Vadas Baker, Arnulfo Cornejo, Dickie Brown, and Louis Valdivia, who had held respec- tive positions of repack department working foreman, dry grocery department working foreman , grocery re- ceiving department working foreman, produce ware- house working foreman, produce warehouse leadmen (both Baker and Cornejo), grocery shipping department working foreman, and deli freezer working foreman. Be- sides this main group, Falls, Fernandez, Pena, Malone, and Cook, whose cases have been determined above, are individuals whom the premium rate issue, as applicable, is also present. Molnar testified that at the time of the strike he had been a working foreman on day-shift receiving work with John Roberts as his supervisor. In early February 1979 Molnar accepted reinstatement to a night -shift posi- tion which turned out to be running orders as he had done in this function 15 years earlier . On returning to Respondent he noticed that Lyster and Brown , both for- merly working foremen of the repack and night shipping department, respectively, had not been returned to their positions. Molnar testified that after approximately 4 months back with Respondent , during which he convert- ed to day-shift work , a conversation occurred with Rob- erts in which he was told Company President Nichols had said none of the former working foremen or lead- men would ever get their jobs back because of being union members. Respondent's argument here is totally unavailing, for aside from questionable viability of the former collective- bargaining agreement as to matters arising more than 6 months following its expiration , the more compelling point is that a statutory test controls under the Board's settled authority to remedy unfair labor practices. There is no known precedent for Respondent 's novel assertion, and the additional sums set forth insofar as backpay cal- culations have been made, or to a postreinstatement point in time when specific individuals were reestablished in their former positions, remain due and unpaid. See Eagle International, 221 NLRB 1291 (1975). This holding is all the more inevitable on consideration of credible evidence that a recriminatory motive affected Respondent's deal- ings with this class . A unique factor applies to Valdivia, whose recall satisfied neither his entitlement to the work- ing foreman differential nor a deli-freezer premium of 12- 1/2 cents per hour, thus entitling him to this special added amount up to the point of his reported retirement. On this basis I determine to confirm these summarized backpay claims for persons so entitled . Cf. Harvey Engi- neering, 270 NLRB 1290 (1984). I. Duty or Mitigating Damages by Diligent Search for Work 1. Generally Mitigation of damages , for which the burden of proof rests on Respondent, may be established by showing that a discriminatee "wilfully incurred" loss by "clearly un- justifiable refusal to take desirable new employment" Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 199-200 (1941). Accord: NLRB v. Brown & Root, 311 F.2d 447, 454 (8th Cir. 1963); NLRB v. Mooney Aircraft, 366 F.2d 809, 813 (5th Cir. 1966). When underlying proceedings have established the commission of unfair labor practices for which a respondent must be accountable under terms of such remedial action as has been ordered and en- forced, this does not affect classic mitigation principles that have been broadly established and applied by the Board. See Aircraft & Helicopter Leasing, 227 NLRB 644 (1976). An individual's age, aptitude, education, skills, qualifi- cations, experience, training, motivation, and personal mobility, taken in connection with labor market condi- tions in the area under consideration , are the chief fac- tors in determining whether a substitute job could be ob- tained by one seeking it with reasonable diligence. Mastro Plastics Corp., 136 NLRB 1342 (1962); NLRB v. Miami Coca-Cola Bottling Co., 360 F.2d 569 (5th Cir. 1966), enfg. 151 NLRB 1701 (1965); Madison Courier, 180 NLRB 781 (1970). Ultimate success is not the test at- tached to an employment search, only that a discrimina- tee make "reasonable efforts to mitigate . . . loss of income" but not to mean that "the highest standard of diligence" was necessarily manifested in the process, pro- vided there was "an honest good faith effort." NLRB v. Arduini Mfg. Corp., 394 F.2d 420 (1st Cir. 1968); NLRB v. Cashman Auto Co., 223 F.2d 832 (1st Cir. 1955). 2. Examination of claimants In accordance with Board practice and comporting with principles of full discovery Respondent called the several individuals here in dispute to testify concerning the extent of their efforts at securing and retaining inter- im employment. The summaries of such testimony are as follows: a. Jack Allen This former striker had been employed as a bread de- liverer in the Baird Bakery Division and its independent predecessor for a total of about 15 years. Following ces- ASSOCIATED GROCERS 841 sation of the strike he went to Dayton, Ohio, for 5 weeks, testifying that he stayed with his parents there while looking for a driving job with bakeries of the local. Allen then returned to Phoenix and in his main search for work unsuccessfully contacted Holsum, Rainbo, and Oroweat as among bread companies, plus miscellaneous small commercial or retail firms . He fol- lowed newspaper leads weekly and suggestions from friends, as well as engaging in miscellaneous odd job en- deavors before later profit-making ventures as a self-em- ployed person. In the latter part of 1979 he and a partner operated a concrete laying business to which Allen testi- fied most of his time was devoted to job estimating. This business was not profitable, however, and Allen was then offered reinstatement by Respondent which he accepted effective late January 1980. b. Charles Wilson This individual testified to being particularly active in the course of the strike, although he had commenced looking for work before the picket signs went down. Subsequent to this he registered regularly with the State Unemployment Office and applied for work at various transportation companies of the vicinity including Trans- con Freight and Yellow Freight. Additionally he testi- fied to checking with Honeywell , Goodyear, and various smaller firms. He completed an NLRB search for work questionnaire form in 1983, listing one employer for each of the 9 months covered by his backpay period using in- formal personal records he had at the time . This listing includes several area companies of the construction in- dustry. Wilson testified that he had tried to be hired through repeated visits to certain of the listed employers, and that other freight lines contacted besides those so re- corded were Time DC, Leeway Motor Freight, and Thunderbird Freight System . Records of the Arizona Department of Employment Security (DES) were intro- duced as General Counsel's Exhibit 30 to reflect periodic registration at that agency during the backpay period. Wilson also testified that at some point he had harbored plans to establish a restaurant business with his girl- friend's mother, and through these persons was loaned $7,500 to assist in meeting living expenses while unem- ployed. These plans were not pursued when Wilson was recalled to work for Respondent effective July 6, 1979. c. Gerald Manning This individual worked in Respondent's warehouse since October 1977, and following the strike returned to duty in April 1979. During the strike he was employed at Pacific Motor Trucking, East Texas Motor Freight, and as a framer at Del Wobb Corporation on a job which lasted for approximately 6 months until January 1979. Manning testified that following layoff from Del Webb he made various efforts to obtain other work. He described contacting small construction companies, gro- cery warehouse firms of the vicinity, Western Electric, his former employers PMT and East Texas Motor Freight, public employers, and the postal service. He specifically named Fry's, Smitty's, A. M. Lewis, and Safeway as companies where he sought work , testifying that with regard to most target firms he went there sev- eral times. He registered regularly with the Arizona DES, and maintained contact for possible employment with Teamsters Locals 104 and 83. Manning 's search for work questionnaire contains only the names of four em- ployers, which he explained resulted from his under- standing that it was not necessary to be more elaborate. d. William Manley This individual had been employed by Respondent for 9 years preceding the strike and resumed work there on January 16, 1979. In the time between the end of the strike and that date, he had sought employment at Fry's, A. M. Lewis, El Rancho, Yellow Freight, various indus- trial companies, the Salt River Project, and the postal service. Manley followed leads from other individuals on the likelihood of job openings, and although none materi- alized he did check back periodically . Manley conceded that he had not tried other grocery warehouse firms of the vicinity, and that he gleaned a belief in the process of seeking work that he was not likely to be hired by a new company because of having been a striker and expected to return to former employment . Manley testified that he checked newspaper want ads daily, and would periodi- cally canvass in the commercial west side of metropoli- tan Phoenix. During his backpay period he had brief casual employment with restaurant supplier S. E. Rykorf, and was a registrant at the Arizona DES. e. Leon Mullins This individual had been employed by Respondent for about 15 years preceding the strike , and eventually re- turned to work as a warehouseman on the day shift in June 1979. His search for work had included registering at the union hall, in addition to checking out classified want ads several times a week . Mullins named Crown Zellerbach, Coca-Cola, Goodyear Tire, and several freight lines as particular companies at which he sought work in efforts that manifested two or three times per week. He had specifically refrained from seeking work at other grocery warehouse companies, because this seemed inappropriate to him after a strike had disrupted his long career in a similar business at Respondent. Mullins re- called a telephone call from Cooksey in December 1978 in which a night-shift order runner's job was offered, which he had declined for fear of adversity if not meet- ing production quotas for that function. f. Keith Brooks This individual had been a grocery driver for Re- spondent, who after participating in the strike was rein- stated in early April 1979. He testified to expecting prompt recall when the strike ended, but as this did not materialize he began looking for a business to operate. He acquired a grease trap and septic tank cleaning busi- ness in late December 1978, continuing its operation under the former name Norm 's Silver Dipper. For ap- proximately 10 days preceding formal ownership, he fa- miliarized himself with the operation by riding to cus- tomers with the seller. The business was originally un- profitable, but then prospered until Brooks resold it in 842 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1982. Following his recall to Respondent 's facility he had worked at the business as a supplementary enterprise with assistance from family members. g. Charles E. Fisher The General Counsel reports that this individual died on May 4, 1979, and contends from this that a residual backpay amount is owed to his estate. Respondent has not disputed this case on the record nor briefed the point. The claim is thus essentially uncontested , and I de- termine that it warrants confirmation in the manner al- leged by the General Counsel. 3. Respondent's evidence Thomas Cook testified that he has been employed by Fry's Food Stores of Arizona for 7 years. He was initial- ly a food clerk and transferred to the position of employ- ment specialist in June 1978. More recently he became personnel supervisor and is a custodian of records for that employer. Cook testified that Fry's follows a policy whereby employment applications which have not result- ed in the individual being hired are discarded after 18 months. By 1978 his company had recently opened a grocery warehouse operation which was smaller in scope than that of Respondent, with an initial complement of 60-70 employees. Cook produced records showing that 24 former Associated Grocers strikers had applied and been hired on a part-time basis by Fry's in a period from 1978 onward. In the case of the other individual, Jesus Dominguez, his record of hire was missing as contrasted with 24 others of the group, and for this reason Cook could only speculate concerning the actual time he had been employed. Wayne Clairmont testified that after holding a series of positions he is now assistant terminal manager for Con- solidated Freightways, where he is custodian of person- nel records. He produced such records concerning Ronnie Cook, Ronald Hager, Jesus Fernandez, and Gil- bert Pena. Regarding these four individuals for whom records were available, their employmont applications showed that they had been working until April 1978 for Respondent and were no longer there because of a strike or labor dispute with that employer. Each of them was initially hired in a commonly used category of driver/salesman as applicable to new employees of Con- solidated . Cook was employed on February 26, 1979, at $9.37 per hour under a Teamsters Union master freight agreement, and remained a dockman at the current hourly rate of $13.20. A similar pattern applied for Hager, whose hiring date was October 16, 1978. Fernan- dez was not hired until March 17, 1980, at which time the applicable hourly rate was $10.66. In the case of Pena his employment date was March 17, 1980, and he was at the latest $ 13.20 contractual hourly rate. Clair- mont testified that in 1978 his company utilized approxi- mately 15 dock employees and 20 city drivers. James Brooks testified that he is distribution services representative for Golden State Foods, and appearing as a custodian of records substituting for his company's un- available personnel manager, Mike Wilson. The records produced by Brooks showed that Richard Williams had been hired in 1978 as a casual employee, that Larry Led- ford had been hired on July 10, 1978 , as a temporary or casual swamper (unloader), that Frank Cooley had been hired on November 2, 1978, on the same basis as Led- ford, and that Frank Bowley had been hired on April 7, 1981, as a casual truckdriver at $9.05 per hour and con- verted to permanent later that year. None of the records available to Brooks showed any reason for Williams having terminated. Norma Thelen testified that she has been human re- sources manager for Alfred M. Lewis Company since February 1979, and is a custodian of personnel records for that company. A search of records showed nothing for individuals surnamed Manley, Manning, or Wagner; however, records of employment were available for George Sokolis, Neil Little, William Gill, Kearney Ebarb, and Charles Fisher, all of whom had been em- ployed during late 1978, and in Fisher 's case into early 1979, as "extra" or "casual" employees pursuant to ter- minology and provisions of the applicable Teamsters Local 104 contract. Employment records showed that Sokolis had worked in the warehouse , while the other four individuals were semidrivers. Catherine Casillas has been an employment representa- tive for Safeway Stores, Inc., for at least 9 years and en- gages in all hiring for both warehouse and store loca- tions. She testified from company records concerning the scope and type of employment engaged in by Emilio Gonzales, Richard Bacchus, Gerald Miner, Allen Watson, Frank Bowley, Refugio Rublaclava, Dennis Stetler, and Dennis Falls. Casillas stated that all the indi- viduals named were employed in situations with compa- rable job benefits under the Teamsters contract . In 1978 Safeway had six or seven warehouses around metropoli- tan Phoenix with a total of about 300 employees in the various locations and a production quota system in effect for order filling. Its various departmental functions within a warehouse paralleled the breakdown used by Respondent . Specifically as to Dennis Falls company records showed that he was employed on August 21, 1978, and terminated by reason of layoff on October 30, 1978. Mark Newton is now dispatcher in the automobile di- vision of Pacific Motor Trucking (PMT), and until its recent closure was terminal manager for the L.T.L. Di- vision in charge of hiring and firing there . He had held this latter capacity for approximately 10 years until this division was closed for business reasons in January 1984. Testifying from business records Newton stated that Jesus Fernandez, J: R. Byrd , and Gilbert Pena had all been employed during 1978 by PMT at beginning hourly rates of $9.37, and were eventually terminated at various times around 1980 because of a reduction in force based on decreasing business volume. Sue Caicedo has been employed in the personnel func- tion of the Tanner Companies since at least 1978 . Testi- fying from a computer printout concerning the employ- ment of Edward Calles as beginning in August 1978, she itemized his hours worked and wages paid for regular time, overtime, and special compensation over the years 1978 through early 1984. Caicedo added that Calles is ASSOCIATED GROCERS 843 classified as a truckdriver and hourly employees at Tanner are covered by union contract of Teamsters Local 83. 4. Analysis Initially I note Respondent's contentions, as made in its brief, that the "large metropolitan area" of Phoenix had "large numbers of potential employers" with "job available during late 1978 and 1979," leading to the ap- parentness that "work was available for those who sought it in the Phoenix area." While appropriate weight should be given to testimony of the hiring officials who tend to support such contentions, the more controlling considerations arise from what is specifically known re- garding a claimant's particular endeavors in this regard. Cf. Midwest Hanger, supra at 919. Neely's Car Clinic, supra. As a composite matter of the probative evidence ap- plied to legal principles by which adequacy or a search for work is evaluated, I find that as to Allen he was without a sufficient interest in interim employment for the immediate period following the end of the strike. His description of time spent in Ohio does not convincingly show a sincere search for work , particularly given the time of year and surroundings to which he returned. On this basis I determine to exclude calendar quarter 1978- 1984 from his backpay entitlement , and confirm the bal- ance of time as not affected by any failure of mitigation. Wilson's search for work was adequate at its inception; however, his testimony shows a loss of interest in finding interim employment roughly by spring of 1979. It is ad- ditionally shown that he was involved with extraneous goals that effectively removed him as a candidate for in- terim employment in the local labor market. On this basis I determine to exclude calendar quarter 1979-1982 from his backpay entitlement, and confirm the earlier balance as not affected by any failure of mitigation. Manning's search for work during his backpay period was convincingly sufficient from his credible testimony on the point. I am satisfied that his limited entry of places visited on an administrative reporting form does not signify any real flagging of his efforts . This is notori- ously common among discriminatees , and his enlarge- ment on the point when actually testifying in open court was not suspect. On this basis I determine to confirm the full amount of his backpay claim as not affected by any failure of mitigation. Manley's search for work was self-limited by reason of not visiting grocery warehouse firms where it was shown numerous former strikers had acquired employ- ment. His explanation on the point is legally insufficient. On this basis I determine to exclude calendar quarter 1979-1981 from his backpay entitlement, and confirm the earlier balance calculated for 1978-1984 as not affected by any failure of mitigation. Mullins' case has the same infirmity. He chose not to work where so many others were prevailing, and thus willfully incurred probable loss of income . There are often imponderables following the disruptive effects of a major strike, and it is reasonable to presume that Mullins' personal choice of disdaining the grocery warehouse in- dustry would not necessarily have impacted the underly- ing duty to effectively search for work until the holiday 1978 period was over. On this basis I determine to ex- clude only calendar quarters 1979-1981 and 1982 from his backpay entitlement, and confirm the earlier balance calculated for 1978-1984 as not affected by any failure of mitigation. Brooks disclaimed any efforts at securing work in the immediate period following the end of the strike. His earlier job applications to Fry's and Golden State Foods were stale by reason of having been submitted in the timespan of June to August 1978, and there is no indica- tion that he attempted to update these applications or check on their status. Given these facts, I am satisfied that Respondent has met its burden of proof in establish- ing a failure of mitigation for a temporary period count- ing from early October 1978 . However Brooks' subse- quent steps in locating, acquiring, and effectively running a private business were fully efficient in meeting his duty to mitigate damages. The fact that profitability did not initially arise is a vicissitude of doing business, and so long as Brooks was engaged in the effort he cannot be faulted. There was no assurance upon his assumption of the business as to when, if ever, he would be recalled, and this choice of gainful employment was not only ap- propriate but, in the long run, quite astute. It is reasona- ble to establish only an initial period as one in which Brooks, by his own admissions , was disqualified from backpay . On this basis I determine to exclude the 8-week period of October 9 to December 3, 1978, from his back- pay entitlement, and confirm the balance of the claim made on his behalf as not affected by any further failure of mitigation. J. Claimed Recommencement of Backpay Periods The general context of this issue is the situation of 13 or more discriminatees who were sent letters bearing an offer of reinstatement to last known addresses, which were not received because the individuals had moved and no forwarding address was available. For this reason such letters, as mailed at various times in the early years of the recall program, were returned to Respondent. During the major compliance undertaking of 1982-1983, these employees were located and more current data concerning them was made available to Respondent as part of the effort of limiting the scope of backpay litiga- tion by disposition of as many claims as possible. This phase was marked by issuance of the original consolidat- ed backpay specification on August 31, 1983, and as mat- ters progressed Field Attorney Goldman wrote Attorney Froimson on December 19, 1983, setting forth certain re- finements to the General Counsel's various categories of its total remedial theory. This letter alluded to the pre- sumed assistance it would have in Respondent's pursuit of "voluntary compliance settlements " as to many of the individuals listed in a 2-page enclosure, and contained the sentence, "Please contact me for current addresses of these individuals." Subsequently, during the course of the hearing, the General Counsel successfully offered this letter into evidence as General Counsel 's Exhibit 27, in which was also embodied the assertedly current ad- dress of 52 individuals. It was clearly emphasized on the 844 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD record that never prior to February 16, 1984 , the date this exhibit was received , had Respondent or its attorney been supplied with an organized list of this type. In a statement of record at that time, Field Attorney Gold- man identified the list as containing names of persons which the General Counsel contended were "still owed an offer of reinstatement," and her further statement of record asserted that as of December 19, 1983, Respond- ent "had by [that] time secured affidavits of most of the people listed on the attachment and hence , had the ad- dresses of all the individuals on the affidavits which it had in its possession." Finally, the General Counsel sets forth in its brief a satisfaction in the belief from informa- tion not a part of this record , that Respondent has made the required contacts in late March 1984 and in this re- spect "stipulate[s]" to that development. A separate situation applies to Larry Broyles, one of the 52 individuals named on the final two pages of Gen- eral Counsel's Exhibit 27. Broyles had written to Re- spondent in the summer of 1983 , and to this Cooksey made the following reply by letter dated July 28, 1983: Received your inquiry letter as to your job status with Associated Grocers. On Sept. 14, 1979, we sent you a letter advising that we had "casual em- ployment" available if you were interested. The letter was sent to your address at 2033 E. Everett, Phoenix, Arizona 85022. You did receive the letter as we have a signed receipt. On August 13, 1980, we sent a letter to the same address and it was returned as your forward order had expired . This letter offered you a full time driv- er's job. Since you did not respond to the letter of Aug. 13, 1980 your employmont with Associated Grocers was terminated on August 21, 1980. Respondent's general contention here is that counsel is not an employer's agent for these purposes, so notwith- standing what may have been "glean[ed]" from material supplied on these individuals during 1983, there is no basis to say that any duty to again extend offers of rein- statement applied to this corporate client. A secondary assertion is that Respondent was not obliged to utilize al- ternate sources of information, when the original em- ployee addresses taken from its files were the most reli- able available information at the time and presumptively into the future. Jay Co., 103 NLRB 1645 (1953), established the princi- ple that a written offer of reinstatement which is not, in fact, received by a discriminatee does not qualify as a valid offer for purposes of fulfilling the reinstatement aspect of a Board Order on behalf of such a beneficiary. However, if made in good faith such a letter would serve to toll backpay as of the date of attempted deliv- ery. The issue in Jay Co. related to a single discriminatee, and when this case was enforced as NLRB v. Jay Co., 227 F.2d 416 (9th Cir. 1955), the court treated the matter of unlocatable beneficiaries by writing, "A few inquiries might and probably would have resulted in learning where Shannon could have been contacted." Recent consideration of the point has not shown a willingness on the Board's part to apportion a significant burden on the employer in cases where a person has re- located. In Bodolay Packaging Machinery, supra, the argu- ment was advanced that when a discriminatee appeared for an unfair labor practice hearing following an unsuc- cessful good-faith effort at communicating a written offer of reinstatement to him, this obliged the employer's rep- resentative, also present with the discriminatee, to reiter- ate the offer. Presented with a clear opportunity to place an onus on the wrongdoer, the Board, with one member in modified concurrence, instead held it "[in]appropriate" to order the claimed backpay other than for an undis- puted portion. Here the general circumstances are those of a massive backpay proceeding, with the Regional Office increas- ingly demanding urgency of handling from mid-1983 onward. With that as flavor, the natural question is why the Regional Office did not supply these claimedly sig- nificant addresses in orderly fashion as of late December 1983, when it seemed as compelling that Respondent was to have them. An even greater question is that of what obligation the individuals had to take personal responsi- bility for giving current notification to Respondent, as to whom they still maintained a statutory employment rela- tionship. There is no claim nor proof that the offers of this cate- gory were not made in good faith, this being one of the elements to at least toll backpay if not extinguish rein- statement rights. Cf. Salem Paint, 257 NLRB 336, 341 (1981); Burnup & Sims, supra. As to the general mid- period of 1983, I note that this is the era in which the General Counsel has profusely explained the perplexing difficulties of correctly winnowing remedial data even by use of its entire regional staff, and has apologetically explained that the startling inconsistencies which ensued were a reflection of the magnitude of the problem. As to late 1983, 1 see no reason to say that Respondent was obliged to request what readily could have been provid- ed to it, particularly as a major new amended consolidat- ed backpay specification was imminent and in fact did issue on December 23, 1983. I am particularly confident that the General Counsel's belated introduction of this group on February 16, 1984, literally in the midst of rigors of an extended trial in which Respondent was faced with still further major amendments many of which occurred on the eve of the trial opening on Feb- ruary 7, 1984, with significant reversals of position throughout the hearing, and with the added necessity of dealing with important issues raised by the union's notice of intent (to be dealt with below) as filed only on No- vember 29, 1983, did not for these reasons give rise to any requirement that Respondent face and deal with such a legalistic matter as an immediate duty. Notions of fairness and due process would clearly be offended by such a sanction, and I would not have estab- lished any date earlier than April 1, 1984, as that on which Respondent need address this new data, after free- ing itself from the all-consuming concerns of this litiga- tion. I am fully mindful that overall public policy is to extend remedial benefits in all reasonable ways ; however, here the circumstances do not warrant what would be heavy-handed is not punitive in character. I find such an ASSOCIATED GROCERS evaluation also in harmony with Seyforth Roofing Co., 263 NLRB 368 (1982), in which the Board reinstated the requirement of a job offer but expressly permitted that employer to present in compliance proceedings, "that the method it employed . . . while tenuous, was nevertheless reasonable under the circumstances, and thus sufficient to toll its backpay obligation ... . On this basis I determine that the individuals to whom this issue relates were subject to a tolling of backpay which did not admit of any recommencement ; however, should individual cases show a late March 1984 offer of reinstatement to have been invalid this period of such tolling would end effective April 1, 1984. With respect to Broyles' individual case, the letter of July 28, 1983, carried an implication that the "full time driver's job" was appropriate and made in good faith at the point in time of 1980. The holding in Jay Co., termed by the General Counsel as the "lead case" in this area, involved a resurrection of backpay liability, in part, be- cause the discriminatee belatedly learned of the offer and then "informed . . . or his availability for work ...." Given the circumstances of this case and whereabouts of Broyles' nearly 2000 miles distant from Respondent, I am influenced by the lack of evidence that he gave any post- July 1983 notification of employment availability in Ari- zona, and for this reason determine further in his specific instance that the tolling of backpay did not lift any more so than with the approximately one dozen others in- volved. IV. ISSUES PRESENTED BY THE CHARGING PARTY A. Pension Plan Payments The 1975-1978 contract provided for employer contri- butions to the Western Conference of Teamsters' Trust Fund in monthly amounts scaled from full-time employ- ees to those working as little as 1 hour per day . The con- tributions continued following expiration of the agree- ment in February 1978; however, upon commencement of the strike Respondent ceased making its payments on behalf of any individuals whether strikers or not . During the intensive negotiations that preceded the strike Re- spondent, on or about April 8, 1978, made a comprehen- sive "full and final proposal" for a new 3-year agree- ment. As to employee pension coverage, Respondent's offer was to initially increase its hourly contribution in maintenance of benefits, then effective in December 1980 provide additional benefits for the balance of any re- newed contract with a further 7 -cent-per-hour payment for costs. The cessation of payments as of April 12, 1978, remained in effect until the new contract between the parties was reached in December 1982. Thus for a 4-1/2- year period no pension coverage attached to employ- ment within the bargaining unit. The Union, as the Charging Party with standing to ad- vance matters relative to implementation of the Board's Order, contends that Respondent's written prestrike pro- posal on this subject constituted a firm and final offer which must be deemed to have its terms incorporated into the make-whole remedy to which discriminatees are entitled. Acknowledging that the General Counsel does not now join in this position, the Union asserts that from 845 1980 to mid-1983 a contrary view was taken by the Re- gional Office, and this as testified to by present Secre- tary-Treasurer and Executive Officer Tony Lock is what the Union relied upon. Lock had been a principal negoti- ator during 1978 as an assistant business agent at the time, and although he changed capacities in succeeding years a residual responsibility was at all times to monitor the main case as it proceeded through litigation. Lock testified that the firm and final offer with respect to pen- sion was never modified in any dealings between the par- ties, and that he had learned of the discontinuance of pension contributions during the summer of 1978. He re- called numerous discussions with Board agents following issuance of the Board Order in 1980 in which the recov- ery of pension contributions was specifically contemplat- ed, and in fact he was asked to use his contacts in ascer- taining what the actual unpaid amounts would be. In mid-1983 this expectation was changed when Regional Office personnel advised Lock that the matter of pension contributions would not be contained in a backpay speci- fication because no 8(a)(5) charge had been filed on the point in connection with the underlying case. Respondent's defense here is that the Board's Order did not affirmatively provide for retroactive pension con- tributions, and no requirement to that effect should be read into it. Respondent argues that it is too late under the time limitations of Section 10(b) of the Act to now raise the issue, and the Union was fully capable of having timely done so when it is seen that several other 8(a)(5) subjects had been litigated, one at least of which was successful. More fundamentally Respondent con- tends that no violation of the Act has arisen from the unilateral changing of terms and conditions of employ- ment by cessation of pension contributions and knowl- edge of union agents, actual or constructive , is sufficient to now bar the claim. I see no justification for the Union's position because of the controlling fact that a mere proposal on a subject cannot vitalize a particular fringe benefit as a future con- dition of employment. It is the actuality of what obtained throughout the work force from mid-April 1978 onward that matters, not what might have been had the impasse in negotiations not occurred . All individuals, nonstrikers, strike replacements , and returned strikers were treated alike, and the scope of their poststrike employment simply did not include a funded pension plan. Cf. South- side Electric Cooperative, 243 NLRB 390 (1979). There can be no claim of unlawfulness on the point, because the employer's action was not tested by filing a timely 8(a)(5) charge, and the fact that other unfair labor prac- tices were committed does not alter what actual terms of employment were in effect. I believe Respondent cor- rectly cites NLRB v. Cauthorne Trucking, 691 F.2d 1023 (D.C. Cir. 1982), in making the point that the good-faith nature of impasse reached in 1978 limits the range of a make-whole remedy to what it was as a matter of actual job benefits which survived consequences of the strike. In East Wind Enterprises, 268 NLRB 655 (1984), the Board approved dismissal of the pension aspect of a backpay specification when its original order did not ad- dress the point, and factually the evidence showed pen- 846 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sion contributions to have been "completely discontinued for all employees." The Union's case authorities are all clearly distinguishable, and its argument on this point de- volves largely to unavailing urgings that general princi- ples of equity should govern the subject . On this basis I determine that the Board's make-whole remedy for dis- criminatees is properly fulfillable without the retroactive imposition of pension contributions for the period in issue. B. Health and Welfare Benefits Relatedly, the Union contends that Respondent's uni- lateral establishment of a substitute health and welfare plan for employees in September 1978 gave rise to the liability of refunding employee portions of premiums paid thereunder. The last group insurance contractually in effect between the parties provided a monthly contri- bution for each full-time employee to the Southwest Teamsters Security Fund to cover health and welfare benefits including hospital, surgical, lost time, and vision care. It was stipulated on the record that trustees of this fund determined shortly after April 8, 1978, not to accept further employer contributions, which led to a lapse of coverage for its employees. The substitute plan later in 1978 was underwritten by Aetna Insurance Com- pany, and constituted an action in which the Union ac- quiesced in principle. However, Lock testified that he was not aware of any requirement that employees pay a portion of their health care premiums until early in 1984. He also verified that Respondent's firm and final offer of April 1978 had proposed to continue this benefit, with the addition of dental care and further funding for retir- ees. As with the prior subject, Lock testified that this proposal was never altered by Respondent. Here the Union contends that the Aetna plan provided benefits inferior to those defined by the firm and final offer on the subject, and employees were burdened with premium contributions calculated proportionately from their annual income . The Union's theory parallels that advanced with regard to pensions, while Respondent re- peats its essential arguments as premised on Section 10(b) and the absence of a timely 8(a)(5) charge on the point. I see nothing to differentiate the holding here from that applicable to the issue of pension plan contributions. Both Cauthorne and East Wind have a similar bearing on the issue, and it is again a matter of noting that the actu- ality of what obtained in terms of job benefits during several years following the strike is what controls. It is not inconsistent, nor inequitable, to hold that the Board's make-whole remedy shall require only such "rights and privileges" as were lawfully in place, and not what might have been negotiated differently or adjudicated fa- vorably upon the theory of a timely charge. On this basis I determine that the Board's make-whole remedy for dis- criminatees is properly fulfillable without the retroactive requirement that Respondent refund group insurance premiums paid by employees . This determination is inde- pendent of the matter of medical expenses incurred by discriminatees, a separate issue which the parties have stipulated as being contingent on basic rulings in the cases of individual discriminatees (Tr. 1460-1462). C. Individual Claims 1. George Grace This individual was a high seniority employee in the drivers department, having been with Respondent since 1965. In 1973 he experienced a slight stroke limiting him to lifting not more than 25 pounds , and for this reason he was assigned a job of trailer pickup . This entailed drop- off and hauling trailers at and from Respondent's suppli- ers, with a job variation being that from twice a week to twice a month Grace would take a grocery load because drivers were short in that main function . He was one of three persons in this particular job setup , with highest se- niority of the group. Grace was age 61 when the strike started, and he began receiving Social Security payments upon turning 62 in July 1978. He also took his Teamsters pension that summer. Grace testified that his original application to Social Security was motivated by his desire not to fall delinquent on a $5000 loan taken in March 1978. His Teamsters pension payments began in November 1978 retroactive to the previous July. Notwithstanding this Grace worked several weeks during the strike for an Oklahoma-based asphalt hauler, until need for him was over. He testified to making occasional inquiry of Re- spondent's management as to work prospects there, but nothing materialized until a time after the strike was over. Grace was registered for employment with the Teamsters Local 104 office at the time and he periodical- ly checked newspaper want ads . Grace recalled contacts with Cooksey as occurring subsequent to those with Tom Gardner, and that on two such occasions those with Cooksey were merely "friendly conversations" which dealt inconclusively with Grace's chances of re- turning to work. Grace's further recollection was that Gardner called him in February 1979 with the offer of a job delivering groceries. Grace explored this personally with Gardner, but ended up telling him that with its fre- quent requirements of lifting in excess of 25 pounds this was actually the same sort of work he had been taken off 5 years before. Grace testified that at the time there were lower seniority employees occupying the position of which he had formerly been one of the three . Following this he made continued unsuccessful contacts with Re- spondent, but nothing further materialized . Grace stated that after becoming age 65 in 1981, he did not thereafter plan to resume working. Cooksey testified to telephoning Grace in December 1978 and offering him the "same program " as he had done before, to which Grace allegedly answered he had become too old to haul delivery loads any more. Cook- sey recalled that Grace indicated he would for this reason not return, and there has been no further contact. With respect to the sporadic fill-in by pickup drivers in the past, Cooksey testified that these were selected to take any awaiting grocery loads by seniority. I am satisfied that Grace is disqualified for several rea- sons. In the first instance he manifested an intention to remove himself from labor market consideration when, after short employment while the strike was still in progress, he resumed his Social Security annuity and has ASSOCIATED GROCERS not by overall probative evidence in his case made any real change from the significance of this new retirement status. I credit Cooksey with respect to both his testimo- ny of what job was offered Grace, and that his former position involved an unpredictable amount of grocery delivery work in which truck unloading was required. The Union argues that such assignments were to be made by seniority, but it is equally true that both heavy workload and absenteeism as the causes of such assign- ment make it problematical whether Grace would have received an appreciable number even before the strike. Thus the offer to him in December 1978 was essentially his former position, and to the extent that by December 1978 strike-related variations in operation were still a factor it was substantially equivalent to what he had usu- ally done before. I note that Grace stated he had not had the intention of retiring until age 65, and that he often looked for work with area trucking companies in the time following 1978 . The former point is immaterial and I discredit the latter portion of his testimony , for it was so peculiarly at variance with a prior affidavit on the subject and otherwise offered in a manner that did not persuade me to believe what he claimed had occurred. I believe instead that his last serious effort at continuing with further postretirement employment of any reason- ably gainful nature ended by October 1978, and he has not shown himself to be within scope of the Board's Order in this case. On this basis I determine that the Union's claim on behalf of Grace is without merit, and that he is not entitled to backpay in any amount. 2. Forrest Craghead This individual was another relatively high seniority employee of over 20 years' service , who worked the last 3 years prior to the strike in the nonfoods warehouse function of stamping cigarettes. This job involved stand- ing and moderate lifting to stack pallets . When the strike commenced Craghead was also age 61. Upon reaching his 62d birthday in August 1978 he applied for Social Se- curity benefits, and these commenced the following month. He also went on pension under the Union's re- tirement plan. Based on a written offer of day-shift employment from Cooksey dated April 30, 1979, Craghead returned to duty but was assigned the unloading of boxcars by use of skids, forklift, and hand lifting of up to 70 pounds. After a week of this he was transferred to the unloading of in- coming merchandise off trucks by forklift. He soon expe- rienced aggravation in this job to a varicose vein condi- tion, and notified Supervisor John Roberts that the work gave him leg trouble . After asking his foreman several times over the next 2 months for a return to his former job, Craghead spoke with Roberts saying he had to choose between his Social Security and the difficulty of continuing in that job . Finding no other alternative of- fered by Roberts, Craghead quit at that time and has since, except for discretionary contribution of his time to a church organization , not sought other gainful employ- ment. In this case the Union argues that Respondent did not reinstate Craghead to his former position of employment, a job not shown to have been filled by any permanent 847 replacement during the course of the strike . It is noted that the receiving work both at the boxcars and the truck unloading dock was heavy, arduous, and typically performed by much younger individuals. As to particular comparative tasks the Union refers to Craghead's uncon- tradicted testimony that constant standing - on his ciga- rette stamping job had not affected the varicose vein condition, but it was the jolting use of foot pedal con- trols on the forklift that caused the aggravation , without which he would not have been obliged to quit. I cannot hold for Craghead because his decision to become a Social Security annuitant was tantamount to a withdrawal from labor market consideration for backpay purposes. The Union argues that he was "forced" to make the move, but this overlooks the plain truth that it was the effects of the economic strike which impacted on Craghead in a way that his own personal course of action was to retire . I recognize that he has testified to an intention of not doing so until age 65, however, it is the reality of the case that must be looked to. Respond- ent established that aside from minor endeavor based on family affinity Craghead did no more at seeking interim employment prior to his recall in spring of 1979 than he did afterwards. It is evident that he was interested in re- sumed earnings, however, he also admittedly watched the accumulation of these so as to avoid loss of Social Security benefits. The employer was no more correct in its offer of grocery receiving work to this former incum- bent of a light repack position than it has been in numer- ous other cases, however, here the essence of the situa- tion is that Craghead had lost statutory employee status prior to 1979 by manifesting one of the most basic of all indicators that a person has converted to the postem- ployment phase of his life. On this basis I determine that the Union's claim on behalf of Craghead is without merit, and that he is not entitled to backpay in any amount. 3. Charles (Rusty) Ahart III This individual had been employed in the grocery merchandise repack area of the warehouse since 1972. He participated in the strike, but by summer 1978 was facing foreclosure on land he owned . Ahart secured the Union's permission to enter Respondent's premises for discussion, and this was carried out in Cooksey's office on August 14, 1978 . He explained his financial problems and offered to return to work to which Cooksey said this could be arranged providing he would cross the picket line. Ahart answered that he had too many friends on strike to do this, to which Cooksey set forth the choices of (1) staying on strike, (2) crossing the picket line, or (3) quitting. Ahart testified that he also displayed a doctor's letter recommending move to a different climate in aid of a sinus condition, and that he had at the time an offer from his father of a place for him and his family in Colo- rado. Ahart then reviewed his choices and decided to quit, following which he filled out a termination form. He did thereupon move to Colorado and held a variety of jobs there, the last one of which has lasted for over 5 years. Ahart recontacted Respondent in late fall 1978 to 848 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ask if he would be in any recall group , but was told this would not happen. There is no valid theory upon which Ahart may pre- vail. Additionally his testimony is vague and implausable as concerns the doctor's letter which he had in his pos- session for 2 months prior to the Cooksey visit, and which Berton Siegel, doctor of osteopathy , denied having given for tax purposes as Ahart stated when en- larging on the subject . To the extent that the Union argues Ahart's expressed intentions of returning to work at Respondent, and following the strike being presum- ably available to do so, this is without materiality be- cause of his voluntary act of resigning as he did. The point needing emphasis here is that there is absolutely no indication of record as to why Ahart was in any better position, financial or otherwise , by executing his termina- tion papers on August 14 as opposed to simply walking away from Cooksey's office to his former status as a striking employee whether to continue residing in the Phoenix area or whether to immediately relocate to Col- orado. Ahart's case is simply that of a quit, and the issue is no larger than this essential fact . On this basis I deter- mine that the Union's claim on behalf of Ahart is utterly without merit, and that he is not entitled to backpay in any amount. 4. Charles O'Banion This individual had been a garage serviceman for Re- spondent since 1970. The strike left him financially desti- tute, and by late summer 1978 he had the recommenda- tion of a job at Southwest Forest Industries provided he would quit at Associated Grocers . With this in mind O'Banion saw his former Supervisor Frank Wood and signed a termination form, after which he started at Southwest on September 20, 1978 . O'Banion testified that his conversation with Wood involved advice that he was quitting because of the other company's insistence, and that he did not express any disinterest in again working for Respondent. After a month at Southwest O'Banion went into diesel repair work on a self-employed basis and otherwise, and then eventually to employment with A. M. Lewis. Respondent established that O'Banion had not includ- ed a specific written reason for quitting , nor had he ad- vised those at Southwest about his supposed interest in returning to Respondent. The Union contends, however, that as with Ahart this is a case of a "technical" quit to which the individual need not be held. Here I place no weight on the "undisputed" fact that O'Banion was faced with a condition of obtaining the particular employment of Southwest. At that time the strike was still in progress. His plight was no different from the several hundred other strikers, and there is a need for certainty in such a situation since otherwise the carefully balanced rights of employers and employees would be distorted if an individual could secure continued statutory rights on such tenuous grounds. The Union cites Big Sky Sheet Metal Co., 266 NLRB 21 (1983), but here the Board noted appropriately that it was the employer's unlawful conduct that forced the individual to resign. On this basis I determine that the Union 's claim on behalf of O'Banion is without merit, and that he is not entitled to backpay in any amount. 5. Robert Prusak This individual was hired in 1972 and held a prestrike position of truckdriver delivering grocery loads to points away from Phoenix. During the strike period he was in- jured in an auto accident , and then a second one around October 1978 . Prusak testified that these accidents left him successively unable to drive a truck for a period ex- tending toward the end of that year. However, around October 1978, Prusak started a vacuum cleaner business, which did not require the sort of physical exertion for which he was limited. He contin- ued running the business and in April 1980 was contact- ed by Cooksey with the offer of a truckdriver's job. Prusak recalled telephoning Cooksey to advise that he was unable to return immediately because the business could not be sold on such short notice. He recalled that next he received a letter in June 1980 concerning his return to work subject to medical clearance . Prusak testi- fied that he or his doctor arranged to send the employer a letter, and contemporaneously he advised Cooksey that he was still making an effort to sell the business to a re- sponsible buyer. Prusak recalled Cooksey stating that if he did not return to work by July 3, 1980, he would be terminated . The Union introduced Charging Party's Ex- hibit 6, a letter dated June 30, 1980, "To Whom It May Concern" from Joseph S. Habros, M.D., in which Prusak was named as a patient under care for low back strain which had recently improved permitting return to his usual occupation . Prusak testified that in his final conver- sation with Cooksey he expressly informed of being physically able to resume driving, but that he needed more time to dispose of the business . Prusak has had no contact from Respondent since then. Cooksey testified that he had notified Prusak of the availability of casual work shortly after the strike ended, and then offered him regular full-time employment via a telephone call in April 1980. He recalled Prusak answer- ing that he was hurt and unable to work, to which Cook- sey requested a medical release whenever possible. Cooksey subsequently sent Prusak a letter dated June 25, 1980, requesting advice as to availability for work and a medical release to such effect. The letter stated that unless contact was made by Prusak to Cooksey by July 3, 1980, it would serve as a termination of his employ- ment from Respondent . Cooksey denied any further con- tact from Prusak , or that Respondent had ever received Dr. Habros' letter. This is a claim that turns largely on credibility because of the extreme differences in the testimony of Prusak and Cooksey. On demeanor grounds which are particularly convincing in this instance, I credit Cooksey in full and largely discredit Prusak's fanciful rendition of events during the 1978-1980 period. Prusak's testimony was confused, contradictory, and grossly at odds with an affi- davit given by him in 1983 . I find the fact of the matter to be that Prusak had not formed the intention of resum- ing work as a truckdriver after his auto accidents at any time subsequent to termination of the strike, and that this ASSOCIATED GROCERS was the advice he gave to Cooksey in the first contact of April 1980. Further I reject Prusak's version of any June 1980 contact, finding here that as Cooksey testified the only revelations having to do with Prusak's physical condition had been made 2 months earlier , and as to which there was no known followup in terms of submit- ting a medical opinion . Cooksey's action of finally setting a written deadline was reasonable under the circum- stances, for it was sufficiently apparent that by then Prusak was not only unlikely to reach a condition of again being able to perform truckdriver duties but was as disinterested in returning to this employment that he ig- nored the written request for a• medical evaluation. Beyond this Prusak is shown to have been permanently committed to business endeavors, and his explanation of how 2 months constituted insufficient time in which to sell his vacuum cleaner business does not suffice in terms of holding employment open to him for such a length of time. It is illuminating to compare Prusak's conduct to that of Brooks, as to whom the General Counsel's brief accurately summarizes the facts of this individual being in the midst of conducting an interim commercial busi- ness but upon an offer of reinstatement "accepted imme- diately." On this basis I determine that the Union 's claim on behalf of Prusak is without merit, and that he is not entitled to backpay in any amount. D. Maintenance Department 1. Setting Before certain additions that were completed by 1981, Respondent's facility comprised a structure of roughly one-half million square feet with specialty areas for deli products, frozen foods, produce, meats, and dairy items. There were approximately 50 loading docks at which elevatable steel dock plates were positioned, and an ex- tensive yard area for the parking of tractors and trailers. Following additions to the warehouse in 1981 there were then about 80 loading docks, which required mainte- nance both as to damaged dock plate surfaces or mecha- nisms as well as debris removal from beneath the dock plate for sanitation purposes. Over the years 1979-1981 a major warehouse addition of 200,000 square feet was constructed, and other modifications made with respect to the layout of merchandise areas and of offices. Small structures were also built at that time along the west side of the premises for use as a drivers' room and a mainte- nance office out of which Superintendent Max Brook- bank worked. In the years following seven further addi- tions have been made to the facility. In the older portion of the general grocery warehouse 12-foot high steel racks were used for the stocking of merchandise, which would reach a total of 16 feet in height when loaded to full vertical capacity. The warehouse addition of 1981 was higher, and resulted in use of 24-foot high steel racks which would load to a total vertical height of 32 feet. The frozen foods department also used steel racks for the storage of goods and these were, as needed, rein- forced with welded angle iron and braced with diagonal struts as was the case with typical dry goods racks. Movement of products was achieved by battery operated forklift trucks or "tugger" vehicles, on which there was 849 a platform for the operator to stand . The batteries used to power forklifts were large heavy high-voltage units that rode on the rear portion of the vehicle. The batter- ies were amenable to repair by cell changing as needed, but more typically were simply replaced when too many cells were low or inoperable. An older method of re- placement involved removing and replacing by chain hoist operated off of a traveling beam, while newer design permitted a forklift to raise and place the new bat- tery on a unit. The facility had a total of about 3000 quick carts, which were open steel carriers on four caster wheels that could be left at customer premises for unloading and later pickup . These quick carts had a steel tongue device welded to the front and a hitch at the rear to allow a series of them being hooked together and drawn. For movement within the warehouse in the load- ing process about 500 dollies were available, which were flat bed carriers having a caster at each corner and a support or barrier bar at the front end. 2. Evidence Brookbank testified that historically the Respondent's organization included a transportation department, one for truck maintenance which involved anything on wheels, and a warehouse maintenance function concern- ing the building and its facilities. Following major oper- ational changes during the years 1979 to 1981 all battery work is now done by the forklift maintenance depart- ment under Supervisor Frank Wood, and his function also performs repair work on dollies. The quick carts which previously required the predominant amount of welding repair work as between such units and the "green" dollies have been eliminated as too costly a method of handling products. Brookbank testified that prior to the strike his warehouse maintenance department included five employees for refrigeration and seven or eight general maintenance employees plus Supervisor Dale Baker. Outside contractors performed major work while the maintenance department performed general emergency repairs and building maintenance including painting and flooring work as time would permit. Brook- bank characterized former employee James Milostan as specializing in general welding after learning this trade from Curtis Christianson, that former employee Frank Wright was primarily engaged in conveyor and electrical work, and that former employee Ronnie Ray Fleming performed a wide range of miscellaneous maintenance work including repair of conveyers. In further regard to dock plates Brookbank testified that with the warehouse expansion new lightweight, more easily maintained dock plates were installed, in consequence of which there has been of less of that type work over the last 2 years than was previously the case . He added that presently em- ployees John Ramirez and William Lee Evans are the only persons doing welding repair on dock plates. Brookbank testified concerning the individual named James Cox, for whom work records were maintained in the past. Brookbank recalled that this individual occa- sionally worked away from the facility, including con- struction work on a cash and carry outlet in Flagstaff, the building of a checkout office and subfloor in Tucson, 850 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD enlargement on another cash and carry operation at Yuma, and a partition enclosure at Kingman . At various times in the past Brookbank put a requirement in effect that all employees of his department submit daily work reports; however, ordinarily these would be discontinued after about 2 months. Dale Baker testified that he worked over 25 years for Holmes & Son Construction as their field superintendent for commercial jobs. During this span Holmes performed major construction work at Respondent's main facility, the first of these being in 1965 when a print shop and storage area was constructed . After overseeing various additional jobs for this customer over the next 11 years, Baker was hired by Respondent as its supervisor of con- struction and maintenance in May 1976 at a time when the meat department expansion was desired. Following this Baker, in conjunction with Brookbank, provided necessary inside coordination for the 200 ,000 square foot warehouse addition by handling all necessary subcon- tracting efforts. In his capacity with Respondent Baker supervised eight maintenance employees, including Christianson who was an experienced specialty welder for dolly repair, overhead work, and packaging equip- ment. Other employees of the department worked spo- radically on quick cart repair, with Baker estimating this to constitute approximately 30 hours per week of which Milostan performed about one-half the amount. Chris- tianson retired 2 weeks after commencement of the strike, and Baker then recruited Ramirez, a person who he knew from the local construction industry as experi- enced on layout and an accomplished all-round and overhead welder. Ramirez started with Respondent in May 1978, and according to Baker essentially replaced Christianson with the performance of specialty welding including warehouse rack repair. Baker considered at that time and up to the present that other persons of the maintenance department with some welding capabilities were not of sufficient competence to equal the sort of work performed by Ramirez . After commencement of the strike Cox began performing remodeling and painting work throughout Respondent's office areas. This, ac- cording to Baker, was not a type of work previously done by regular maintenance employees , but had been performed by himself as an accomplished finish carpenter and cabinet maker with assistance from those of his de- partment. Baker termed Cox as a person who only did construction work, and nothing of a type that regular maintenance employees of the department could have done. Baker testified that the phenomenon of performing necessary warehouse maintenance functions with four employees in contrast to the larger number utilized before the strike was attributable to different modes of supervision and work habits among the remaining indi- viduals. Fleming testified that he had worked in Respondent's maintenance shop since February 1970 and was during that timespan a supervisory working foreman. He had been returned to his capacity as a maintenance mechanic about 3 months before the strike . At this point in time the rank-and-file employees of the maintenance depart- ment were not in the principal bargaining unit. Fleming outlined his representative duties as rack and dock plate repair, lighting and electrical work, plumbing, partition building, painting, tile laying, concrete floor repair, and finish carpentry. He described his tasks when doing welding as the repair of dollies and secondarily quick carts as filler work when time permitted . Fleming in- curred industrial injury disability in early April 1978 and continued in this status until released for prospective return to duty in late 1979, which he communicated to Respondent's personnel office . He had received an avail- ability inquiry letter from Respondent but has never been offered actual reinstatement to his former department. Fleming's seniority was immediately below that of Evans, the last person returned to work following the strike. Wright testified that he had worked as a warehouse maintenance mechanic for Respondent since 1970. His job duties entailed general building maintenance , office renovation, dock plate work, and equipment repair. As to the latter he recalled doing more work on the "green" dollies than on quick carts, and these involved hitch welding, bearing and wheel replacement, plus handle repair. He had experience in welding although not certi- fied in such work at Respondent. Wright was junior in seniority to the entire department except for Milostan. He recalled working on renovation of the 35th Avenue- Glendale store building, at which he built partitions and performed electrical , tile, and painting work. Wright re- called the fundamental separation of the forklift area from building maintenance as occurring about a year before the strike, and that notwithstanding he and other maintenance mechanics continued to perform battery charging as they had done before . His assignment to this task was irregular, but it could on occasion span a 2- week period in which it would occur 2-3 hours on each day. Wright has not received an offer of reinstatement to his former position. Milostan testified that he had been a maintenance me- chanic for Respondent since September 1972, and as such was the lowest seniority employee of the depart- ment. He corroborated the general range of duties out- lined by Fleming and described a "major part" of his job as being arc and acetylene welding as trained to do over the years by Christianson . He testified to doing the heav- ier and noncritical welding tasks such as on a dock board or conveyor, and that Christianson did small, specialty work in the departmental shop. • Milostan estimated his own welding work, including related layout and prepara- tion, as constituting about 80 percent of his total working time on a representative prestrike average. As to the bal- ance of his time he further estimated green dolly repair at 10 percent and quick cart welding as 5 percent or more. In elaborating on these estimates he believed the actual time of welding itself of the total from this func- tion was about 25 percent, and he added that both Flem- ing and Wright did a "little" amount as was the case with all departmental employees. While Milostan had done battery changing in the past, this phased out to only occasional instances over the several months prior to the strike. Immediately upon the strike ending Milostan had vis- ited Respondent's personnel office to inquire about ASSOCIATED GROCERS recall. This did not materialize and he later received a letter from Cooksey dated February 17, 1979, intending to determine his interest in a return to former capacity. By this time he was in the habit of periodically visiting to assess job recall prospects , and he spoke inconclusive- ly with Cooksey about the letter. Milostan has never had an offer of reinstatement from Respondent . He also re- called a conversation with Baker that he placed various- ly at just after the strike up to 2 years later, in which Baker had remarked that none of the three remaining in- dividuals from the maintenance department were likely to be returned to work, because Brookbank for some un- specified reason did not want Fleming to again work in the department. Evans testified that he has 16 years with Respondent, and was recalled to his maintenance mechanic job in 1981. With this reinstatement he resumed the same type of duties as before, these being warehouse rack repair, painting, welding, electrical work, and carpentry. He re- called working with Cox, who did actual maintenance work, wore a departmental badge, and reported in at the same morning time as other employees. Evans worked "a couple times" with Cox, as the two jointly assembled racks and removed shelving. Evans confirmed that the former dolly and quick cart repair work had been trans- ferred to the forklift shop by the time of his return. While this type of welding was no longer then being done, Evans testified that he continued to perform rack repair and in fact completed about 95 percent of all that was required . As to this Evans testified that he had worked nearly exclusively on moving racks, with period- ic assistance by Janitorial Foreman Virgil Lacey, noting that Fleming, Wright, or Milostan only occasionally pre- viously worked with him on this function. He has worked with Ramirez on lighting and conveyors, but generally now performs more electrical work than was previously the case. His former duties involving battery charging were no longer required because he found on his return that it was completely removed to a new de- partment. The amount of general welding he performs since his recall is greater than what came up in his job prior to the strike . As to this prior working time Evans estimated that he spent about 30 percent in repair weld- ing on quick carts. 3. Analysis On this issue the Union cites NLRB v. Fleetwood Trail- er Co., 389 U.S. 375 (1967), for the controlling principle that a failure to return economic strikers to former posi- tions of employment must rest on legitimate and substan- tial business justification as to which the burden of proof is placed on the employer. From this it is contended that the composite of factors shows merely a substitution of personnel, a rearrangement of duties, and a relocation of work stations, that leaves unchanged the essential nature of what the three persons for whom the Union advances separate claims had done before. The Union's argument fails because a considerable array of proof establishes with convincing certainty that an inevitable change in the role of the maintenance de- partment followed facility modernization and more pur- poseful alignment of skills with needed duties. It is per- 851 suasive to set forth that a substantial enlargement of space will facilitate warehouse operations that do not lead to constant maintenance support , and the higher storage racks are understandably now the repair respon- sibility of Ramirez whose heavy welding background is clearly superior to any persons associated with the de- partment past or present. This is also true as to dock plate repair, and here Ramirez is shown as one whose skills coordinate more usefully with the outside contrac- tor serving these units. The services formerly provided by Cox did involve overlap to standard maintenance functions, but not so much as to be significant nor neces- sarily in the same character when his extensive experi- ence in carpentry is considered. Granted that mainte- nance department employees were credibly shown to have assisted in the 35th Avenue-Glendale store renova- tion, this one-time activity does not provide a governing basis to change any assessments . The reconstituted bat- tery repair and recharging operations have been ade- quately explained in terms of business efficiency, with Joe Pena as the recognized specialist for the work and the complete discontinuance of the somewhat ramshakle quick carts is another expectable change with the pas- sage of years. Related to this is the matter of green dolly repair, again a matter of convincing explanation in terms of allocating what everyone agrees was fill -in work to a department having a regular night shift during which such work could more conveniently be accomplished. I have considered Milostan's uncontradicted testimony that he was cryptically told of some unexplained dismay toward Fleming as might disadvantage this individual and those below him in seniority , however, such a free- floating remark does not suffice to discredit the ample showing of why the former maintenance department has never resumed its numerical complement of the past. It is instructive to note that little more has occurred here than did when shortly before the strike the new institu- tional department was formally structured . As to this the General Counsel has correctly argued that the positions of that function became distinctive in terms of a striker's entitlement to have that specific job offered, and it is just such a recognition of evolving business changes that legi- timatized the claim of individuals such as Ashline, Calles, and Christman. I have considered Interurban Gas Corp., 149 NLRB 576 (1964), and Nolan Systems, 268 NLRB 1248 (1984), and find them each distinguishable , believing instead that the situation is more analogous to Textron, Inc., 257 NLRB 1 (1981), in which industrial practices coupled with customer demand were such that the production re- quirements for an inventory buildup following a strike "were such as not to require the hiring of a substantial number of additional employees until ." See Lapeer Foundry & Machine, 272 NLRB 566, 567 fn. 4 (1984). In this final vein it is conceded on the record that the three individuals on whose behalf the Union presses these claims remain preferentially entitled to reinstatement, however, beyond that I determine what they are not owed backpay in any amount. 852 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD V. DISPOSITION The numerous determinations set forth above shall constitute conclusions of law, and in all instances of "running backpay" the protection shall continue , with in- terest, until a valid offer of reinstatement is rendered or some other event serves to legally terminate the liability. The parties set forth a satisfactory inclination to have specific backpay amounts recalculated following resolu- tion of the various issues in dispute. (Tr. 893, 964.) On this basis I refrain from setting forth detailed schedules (appendices) of backpay due individual claimants as cal- culated on a calendar quarter basis, in the interests of avoiding unintended ambiguity and to leave the parties best situated to achieve final disposition of this protract- ed litigation. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed2 ORDER The Respondent, Associated Grocers, its officers, agent, successors, and assigns, shall make offers of rein- statement and pay to each entitled discriminatee an ap- propriate backpay sum based on the determinations of this supplemental decision , together with interest as set forth in Isis Plumbing Co., 138 NLRB 716 (1962), and Florida Steel Corp., 231 NLRB 651 (1977). 8 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses.